Waiver of claims in corporate restructuring

A proven means for corporate restructuring is the waiver of claims on shareholder loans. In principle, however, these are income-effective and thus represent real restructuring gains. To offset loss carryforwards with future profits, they must be considered non-income-effective and as unreal restructuring gains. There are two exceptions to this rule.

Corporate restructuring aims to restore the economic performance and profitability of an overindebted company. One means for this is, for example, the waiver of shareholder claims, which are usually in the form of shareholder loans. According to the Federal Tax Administration, waivers of claims by shareholders are generally treated the same as waivers by third parties: this results in an income-effective capital gain for the company, thus a real restructuring gain. All loss write-offs, depreciations, and provisions made at the expense of this real restructuring return are considered to have occurred for tax purposes and thus cannot be made tax-effective retrospectively.

However, companies undergoing restructuring often have an interest in achieving a non-income-effective capital gain, i.e., an unreal restructuring gain, to offset the not yet expired loss carryforwards with future profits. There are two exceptions in which waivers of claims on shareholder loans count as tax non-income-effective: