Die Besteuerung von Wandelschuldverschreibungen im deutschen und niederländischen Steuerrecht

Analysis of tax treatment of subscription fees in the course of issuance of convertible and option bonds in consideration of two decisions of the BFH (I R 3/04, I R 26/04) and examination of the criteria used by BFH to distinguish between debt and equity, followed by a law comparison with Dutch tax law.
The decisions ended a longstanding dispute, whether the fees should be treated as equity or other operating profit. Following trade law (§ 272 Abs. 2 Nr. 4 HGB) the BFH favours the solution to treat the fees always as equity, regardless whether the option/conversion rights are exercised.
However, unlike in trade law, these decisions don’t reach a final resolution of the tax law dispute. The introduction of the correspondence principal raises further questions. Furthermore the reasoning in the decsisions leaves room for speculation, whether other instruments should be treatet as equity as well.
Option and convertible bonds won’t stop to be full of suspense.