In practice, important intercompany agreements are in particular the control and profit and loss transfer agreement, also in combination as a control and profit and loss transfer agreement.
In a control agreement, a company (controlled company, controlled entity) places itself under the management authority of another company (controlling company, controlling entity). In a profit transfer agreement, the controlled company is obliged to transfer its profits to the controlling company. Both agreements can also be concluded in combination (control and profit transfer agreement). In the case of both a control and a profit and loss transfer agreement, the controlling company is obliged to offset any net losses of the controlled company. If the tax requirements for this are met, a profit and loss transfer agreement leads to a consolidated tax group for corporation tax and trade tax purposes.
A domination and profit and loss transfer agreement itself is generally not subject to notarization. However, in the case of a controlled GmbH, they may exceptionally require notarization if the agreement provides for acquisition obligations of the controlling company with regard to the shares of outside shareholders (see Section 305 (1) AktG). Furthermore, the approval resolutions of the participating stock corporations (both as controlling and controlled companies) and the approval resolution of a controlled GmbH (not that of a controlling GmbH) must always be notarized. Waivers of the formalities provided for in Sections 293a et seq. of the German Stock Corporation Act (AktG) require at least notarization. The required application to the commercial register of the controlled company must also be notarized.
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