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To ensure the ability to act and control the risks, it is therefore advisable to pool the ESOP claims of all those entitled in a separate company, e.g. a GbR. In the GbR contract, the place of jurisdiction is agreed and the choice of law that is binding for all entitled parties is agreed. This makes foreign issues manageable.
It is important that the GbR is not represented by all shareholders as provided for in the law, but rather one or two reliable candidates are assigned management and representation. This means that the company has a contractual partner in the GbR with whom, in case of doubt, details can be negotiated and, if necessary, clarified uniformly for all entitled parties. The contract must also regulate the questions of termination, exclusion, as well as various cases of severance pay in the event of the beneficiary's departure or death.
The bundling of the holdings of all entitled parties in the hands of a single trustee, which is partially comparable to a GbR, was the subject of tax court proceedings. The tax authorities had denied the acquisition of economic ownership and had assessed the exit proceeds attributable to the executives as fully taxable wages and not as a sale of shareholdings subject to withholding tax. The BFH gave the employees a ruling in judgment v. May 21.5.2014, 42, IR 12/20.05.2015 right. A similar judgment was made by the Cologne Finance Court on May XNUMX, XNUMX, in which a management GbR filed a lawsuit.
The GbR is therefore not only suitable for bundling interests, it is also interesting for tax purposes. If the legal relationships in the ESOP are designed in such a way that interim taxation as wages occurs either at the time of subscription and thus at low values, or at any later point in time (Exercise & Sell), then the further increases in value at the exit can be subject to the withholding tax as part of the capital income and are also billed without social security. Despite bundling in the GbR, each beneficiary is taxed individually according to the law of their country of residence. The exit taxation of Section 6 AStG must be taken into account if a change of residence from Germany to another country occurs after the interim taxation and before the exit.