Corporate tax group in the case of the existence of an atypical silent partnership in the controlled company (BFH of 11.12.2024 - I R 33/22)

According to Section 14 para. 1 sentence 1 KStG, the central prerequisite for the existence of a consolidated tax group for corporation tax purposes is that the controlled company transfers its “entire profit” to the controlling company on the basis of a profit transfer agreement. Whether the “entire profit” within the meaning of Section 14 KStG is transferred if there is an atypical silent partnership interest in the controlled company that is linked to an allocation of profit to the shareholder (co-entrepreneur) is assessed differently by the literature, the tax authorities and the tax courts. The BFH has now taken a position on this for the first time in its ruling of 11.12.2024 (I R 33/22).