(Personen-)Gesellschaften im Erbschaftsteuerrecht

The long-disputed transparent taxation of partnerships under German inheritance tax law was expressly codified for the first time with the entry into force of the MoPeG through Section 2a of the German Inheritance and Gift Tax Act (ErbStG). Christoph Wolf examines whether this provision is compatible with the German Constitution. The starting point of his analysis is the contradictory treatment of partnerships and corporations under the ErbStG, as well as the significance of the tax-law principle of ability to pay. Against this background, he concludes that Section 2a ErbStG violates the German Basic Law. In his view, the transparent taxation of partnerships - particularly in light of the specific features of inheritance and gift tax law - cannot be reconciled with the ability-to-pay principle. The author then examines the consequences arising from this unconstitutionality. Building on the taxation principles applicable to corporations, he develops a concept aimed at ensuring a uniform treatment of partnerships and corporations under inheritance tax law. To this end, he first analyses the civil-law relationships underlying changes in corporate assets and demonstrates how certain transactions relevant for gift tax purposes may already, under current law, be taxed on a non-transparent basis. On this basis, he considers whether an existing gap in taxation regarding contributions to partnerships could be closed by bringing increases in the value of company interests within the scope of Section 7 (1) No. 1 ErbStG. He rejects this approach, taking into account the purpose of the ability-to-pay principle in inheritance and gift tax law. Finally, he proposes a revision of Section 7 (8) ErbStG that is intended to be as consistent as possible with the overall system and that would also include partnerships.