Besteuerung von Dividenden aus Genossenschaften: Verfassungsrecht und Ertragsteuerrecht: Analytisch-normative Untersuchung und Gestaltungsmöglichkeiten Analytical-normative study and options

This study deals with the taxation of dividends from cooperatives. The underlying income tax system regarding the taxation of dividends paid by cooperatives is analysed. Furthermore, a comparison is made with the taxation of dividends from corporations. The current taxation of dividends from cooperatives is unconstitutional by excluding qualified participations in cooperatives – unlike comparable participations in corporations – from the option of partial income taxation (Section 32d (2) No. 3 EStG). Dividends from cooperatives are subject to higher income taxation than comparable dividends from corporations with no objective reason. This structural discrimination affects natural persons as members of a cooperative who hold their participation in the cooperative as private assets for tax purposes. The study outlines the consequences of the unconstitutionality of dividend taxation for participations in a cooperative with regard to the legislator and the taxpayers concerned. In this respect, recommendations are presented. Finally, the article elaborates on tax opportunities and discusses how natural persons as members of a cooperative holding shares as private assets for tax purposes can benefit from the partial income taxation of dividends.