On constructive dividend in the case of a transfer of treasury shares to the sole shareholder without consideration

Where a GmbH transfers its treasury shares to its sole shareholder free of charge, the question arises whether this constitutes a constructive dividend (verdeckte Gewinnausschüttung). In its decision of 13 May 2025 (VIII B 33/24), the Federal Fiscal Court (BFH) confirmed a constructive dividend in principle but left the valuation open. The Fiscal Court of Münster (judgment of 29 October 2025 – 9 K 1180/22) valued the benefit at € 0, as the sole shareholder's legal and economic position had not changed as a result of the transfer. The outcome, however, cannot be generalized. The revision pending before the Federal Fiscal Court (VIII R 21/25) is expected to set important standards in this regard.