Intention to generate profits and abuse of structuring options within the scope of Section 17 of the German Income Tax Act (EStG) using the example of an excess par issue

In its ruling of May 3, 2023, the Federal Fiscal Court (BFH) upheld its case law according to which the premium paid for a certain share increases the acquisition costs of this share, even if the sum of the nominal amount and the premium exceeds the market value of the share (so-called excess par issue). Even if this is particularly relevant for old cases due to a change in the law, important general statements on the reference point of the intention to generate profits within the scope of Section 17 EStG and the abuse of legal structuring options when realizing losses can be taken from the ruling.