Das Nießbrauchrecht an Mitgliedschaften im Gesellschafts-, Bilanz- und Steuerrecht

The right of usufruct with regard to memberships is regulated only rudimentarily in the BGB, independent company law regulations are missing completely, and effects of a member-company usufruct on the accounting of a company do not exist. Tax law also contains no explicit provisions on the taxation of income from a usufruct right to memberships. In addition, there are inheritance and gift tax uncertainties in the treatment of a usufructuary right in the context of the transfer of memberships, especially in the anticipated succession. The present work is based on these various uncertainties, with a focus on the tax treatment of a usufructuary right with respect to commercial partnerships. The previously so-called co-entrepreneur doubling is critically examined. Inter alia, a new solution is developed, which, starting from the consideration of the usufructuary right as a source of income, sees the usufructuary right in a share of a partnership under certain conditions as a separate co-entrepreneurial part of a special kind. In addition, the tax-related uncertainties in the case of usufruct of shares in corporations are discussed.