German Tax Monthly October 2014

October 2014

German Tax Monthly Content 1. Draft Bill for the Adjustment of the 1. Draft Bill for the Adjustment of • Extension of the partial non- Tax Procedure Law to the Communi- the Tax Procedure Law to the deductibility for shareholder loans ty Customs Code and for Amending

Community Customs Code and and in the event of a transfer of as- further Tax Provisions for Amending further Tax Provi- sets for use by a corporation under 2. Draft Decree on the Attribution of

sions certain circumstances (sharehold- Profits to Permanent Establishments ing of at least 25%; terms and con- On 24 September 2014, the Federal 3. Lower Tax Court of Cologne ditions are not in line with the arm’s Cabinet published a draft bill for the (13 K 3906/09): Request to CJEU length principle) adjustment of the Tax Procedure Law concerning so-called “Final Losses”

[AO] to the Community Customs Code • Change in the determination of the 4. BFH (I R 59/12): Request for Judicial Review of Constitutionality of “Min- and for amending further tax provi- maximum creditable amount of for- imum Taxation” Rules sions. Apart from the adjustment of eign taxes; at no more than the av- provisions of the AO to the EU Regula- erage income tax rate (§ 34c (1) tion Establishing the Community Cus- EStG) toms Code, the new law is intended, in particular, to adjust German tax law to Foreign Transactions Tax Law [AStG] EU law and EU case law, as well as to • Re-wording of the definition of the latest judgments of the Federal Tax “business relationships” for transfer Court (BFH). Further measures will pricing purposes (§ 1 AStG) serve, among others, the stabilization of tax revenues and the simplification of • Extension of the tax deferral with taxation procedures. respect to exit taxation (§ 6 AStG). Responsible The Draft Bill provides for amendments Dr. Martin Lenz to the following, among others: The new law will enter into force on the [email protected] day following its promulgation in the Tax Procedure Law [AO] Federal Law Gazette. However, to Published by • Once legally received, the identifi- some extent other provisions apply for KPMG AG Wirtschaftsprüfungsgesellschaft cation number shall be used to ful- some statutory amendments regarding The Squaire, Am Flughafen 60459 Frankfurt/Main, Germany fill all notification requirements vis- their entry into force and their first ap- a-vis the tax authorities and within plication. Editorial Team a corporate group. The publication of this draft bill will be Prof. Dr. Gerrit Adrian Income Tax Law [EStG] followed by the forwarding to the Alexander Hahn Christian Selzer • Tax exemption of investment Bundesrat (upper house of the German

grants for venture capital (INVEST- Parliament) for comments. Zuschuss für Wagniskapital)

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2. Draft Decree on the Attribution of Profits to Perma- • Determination of the deemed contractual relationships nent Establishments (dealings) maintained by the permanent establishment Through the Administrative Assistance Implementing Act of with the rest of the enterprise 26 June 2013, the so-called Authorised OECD Approach 2st step: function and risk analysis of the business activity of (AOA) was transposed into domestic tax law (§ 1 (5) Foreign the permanent establishment Transactions Tax Law [AStG]). The purpose of § 1 (5) AStG is to regulate the cross-border profit allocation between a On the basis of a comparability analysis, transfer prices are permanent establishment and the rest of the enterprise. to be determined in consideration of the arm’s length principle for the business relationships and dealings of the perma- Pursuant to § 1 (5) AStG, the Functionally Separate Entity nent establishment. Approach applies to cross-border profit determination of permanent establishments, i.e. profit allocation between a In contrast to the draft version, the temporal application of domestic enterprise and its foreign permanent establishment the decree has been postponed by two years. The BsGaV or a domestic permanent establishment of a foreign enter- shall now be applicable to fiscal years beginning after 31 prise is in principal effected just as between two independent December 2014. According to the explanatory memorandum enterprises. to the BsGaV, a BMF Guidance shall determine the conse- In order to substantiate this regulation, the Federal Ministry quences of the earlier application of § 1 (5) AStG (fiscal of Finance (BMF) has been authorised to issue a decree on years beginning after 31 December 2012). the application of the arm’s length principle to permanent Transitional regulations for permanent establishments of establishments (Decree on the Attribution of Profits to Per- building, construction and exploration companies are in manent Establishments [Betriebsstättengewinnaufteilungs- place. verordnung – BsGaV]). A first draft was published in August 2013 (cf. September 2013 edition of German Tax Monthly). In order to enter into force, the decree still requires the ap- Recently, the BMF published the version of the decree which proval of the German Bundesrat and publication in the Fed- has been forwarded to the German Bundesrat (upper house eral Law Gazette. Publication in the Federal Law Gazette is of the German Parliament) for approval. expected by the end of the calendar year 2014.

In the general part, the decree first deals with generally ap- 3. Lower Tax Court of Cologne (13 K 3906/09): Request plicable regulations for the attribution of profits to permanent to CJEU concerning so-called “Final Losses” establishments. This includes – besides definitions and allocation regulations for assets, opportunities and risks – With its decision dated 19 February 2014 the Lower Tax also regulations on the dotation capital and on the deemed Court of Cologne submitted a request for a preliminary ruling contractual relationships (so-called dealings). The subse- to the CJEU concerning two questions related to so-called quent, more specific part of the decree deals with industry- "final losses". specific special regulations, in particular for banks, insuranc- Where Germany has concluded a Double Tax Treaty (DTT) es, building and construction companies as well as for explo- with a foreign state and where the DTT provides for the ap- ration companies. plication of the exemption method to income from a foreign The treatment of the permanent establishment as a separate permanent establishment, the exemption applies to both and independent enterprise (Functionally Separate Entity positive and negative income from the permanent establish- Approach) requires a two-step procedure for the determina- ment. As a result, profits generated by the permanent estab- tion of profits and the attribution of profits to permanent es- lishment are not taxable in Germany and losses can there- tablishments: fore not be offset. However, where the losses incurred by the permanent establishment cannot be recognized abroad 1st step: function and risk analysis of the business activity of for legal or factual reasons, such losses would be forfeited. the permanent establishment For these so-called "final losses" which can definitely no • Determination of the (relevant) personnel functions to be longer be used in the state of the permanent establishment, attributed to the permanent establishment the CJEU provides, under certain exceptional conditions, for an obligation of the state of residence of the head office to • On the basis of the (relevant) personnel functions, the import the losses. Despite the exemption of income from assets, the opportunities and risks, the dotation capital permanent establishments under a DTT, the Federal Tax as well as the remaining liabilities are to be attributed to Court (BFH) interprets the CJEU case law such as to allow the permanent establishment domestic offsetting of losses, at least in cases where offsetting of losses in the foreign state is no longer possible for • Business transactions of the enterprise with third parties factual reasons such as discontinuation or transfer of a per- and with closely related persons within the meaning of manent establishment. § 1 (2) AStG are to be attributed to the permanent establishment

In the case at hand, the plaintiff, a German corporation, 4. BFH (I R 59/12): Request for Judicial Review of Con- maintained a permanent establishment in Austria since 1997. stitutionality of “Minimum Taxation” Rules The DTT with Austria provides for the application of the ex- The Federal Tax Court (BFH) decided on 26 February 2014 emption method regarding income from a permanent estab- to refer the question to the Federal Constitutional Court lishment. In the year at issue (2005) the plaintiff sold its (BVerfG) as to whether the minimum taxation rules are in Austrian permanent establishment within the group to a sis- breach of the Constitution. ter company also residing in Austria. In the years from 1997 to 2005, with the exception of the year 2000, the permanent Under German tax law, losses can be carried forward indefi- establishment had continuously generated losses. Upon nitely for use in subsequent assessment periods. However, request, the plaintiff could initially exceptionally use the loss- the use of loss carryforwards is restricted by a “minimum es dating from the years 1997 and 1998 in Germany based taxation” scheme. Losses carried forward are fully deducti- on an old legal provision. However, when a permanent es- ble up to a limit of EUR 1 million, beyond that, only 60% of tablishment is sold in the subsequent assessment periods, the taxpayer’s current year income or trade income in excess the losses are added back. Therefore, the local tax office of EUR 1 million can be offset against tax loss carryforwards. reversed the offsetting of losses in 2005 because the perma- The remaining 40% are, as a general rule, subject to corpo- nent establishment was sold. In addition, it denied the offset- rate income tax or trade tax plus solidarity surcharge (mini- ting of the losses in Germany generated by the Austrian mum taxation, Mindestbesteuerung). permanent establishment in the years 1999 to 2005 based In the case at issue a cooperation agreement existed be- on the exemption of the income from the permanent estab- tween B-GmbH and D-GmbH which was concluded in 1992. lishment under the DTT. According to the agreement, B-GmbH was obliged to acquire The plaintiff considers the add-back for the years 1997 and land on its own account and make it available to D-GmbH 1998 as well as the non-recognition of the losses from the against reimbursement of expenses. In later periods, B- Austrian permanent establishment for the years 1999 to GmbH’s expenses exceeded its revenues. Therefore, B- 2005 to be a breach of the freedom of establishment under GmbH capitalized a compensation claim due from D-GmbH EU law, because if it had been a purely domestic matter a as receivable in its balance sheet. Following lengthy argu- recognition of the losses would have been possible. As ments and disputes with D-GmbH, B-GmbH adjusted the already decided by the BFH, the losses in the case of a sale value of the claim in 2004 and wrote it down to zero. The of a permanent establishment were final losses. resulting loss for the year was carried forward. Two years later B-GmbH reversed the write-down. As a result, it re- In the opinion of the Lower Tax Court of Cologne, the princi- ported a profit for the respective year. However, due to min- ples applied by the BFH and the CJEU to determine whether imum taxation, the loss carryforward could not be offset in or not losses are final are not sufficiently conclusive. The full against the profit of the same amount. Since B-GmbH BFH differentiates between final losses for legal reasons had become insolvent in the meantime, it was unable to use which are not to be recognized, and final losses because of the remaining loss carryforward for tax purposes. factual circumstances in the state of the permanent establishment where the finality of the losses must be recognized. The Federal Tax Court held that in the case at issue mini- However, in the opinion of the Lower Tax Court this distinc- mum taxation is unconstitutional. The expenses incurred in tion is not clear-cut enough. In both cases the recognition of 2004 and the revenues generated in 2006 both go back to the losses in Germany depends on the circumstances and the same legal basis (cooperation agreement) and are of particularities abroad. Therefore, in its first question in the equal amounts. In the present case the write-down to the request for a preliminary ruling the Lower Tax Court of Co- lower going-concern value and its reversal trigger a tax liabil- logne would like to know from the CJEU whether the adding ity in the context of the minimum taxation scheme because back of losses because of the sale of the permanent estab- they occurred in different assessment periods. The result is lishment is compatible with EU law. In its second question in a taxation of profits that were not actually generated. Ac- the request the Lower Tax Court of Cologne would like to cording to the opinion of the BFH, the legislator failed to have a response to whether it is required under EU law that differentiate between the specific legal consequences of the foreign establishment losses are "imported" into Germany disputed rules depending on the reasons that caused the despite a factual exemption under a DTT, if the losses can losses or the circumstances that brought about the profits. definitely no longer be used abroad because of the sale of This omission cannot be justified by invoking the legislator’s the permanent establishment. authority to standardize and simplify. It remains to be seen how the CJEU will decide. However, it The same applies, in the view of the BFH, where trade tax is seems rather improbable that the Court of Justice will depart concerned. The Ist Senate of the BFH did thus explicitly not from its principles concerning final losses which it only re- follow the case law of the IVth Senate of the BFH (judgments cently confirmed in several rulings (e.g. ruling on 21 Febru- of 20 Sept. 2012, IV R 36/10, Federal Tax Law Gazette ary 2013, "A Oy" case, ref. C-123/11). (BStBl.) II 2013, 498, IV R 43/10, BFH/NV (collection of not officially published decisions) 2013, 408, IV R 29/10, BStBl. II

2013, 505) according to which the specificities of trade tax

could justify minimum taxation in situations where losses decision (e.g. liquidation) or to an interplay between mini- have become final. mum taxation and anti-abuse rules. Furthermore, the BFH emphasized that it is impossible to Since the BFH assumed that the application of the minimum find an interpretation of the disputed rules which would com- taxation rules in situations where losses have become final is ply with the constitution. Not every situation where losses incompatible with the constitution, the proceedings of the have become final necessarily deserves constitutional pro- relevant action were suspended in order to obtain a ruling tection. Unlike in the case at hand (insolvency), minimum from the BVerfG. taxation could be constitutional if the final forfeiture of the remaining loss carryforward is attributable to a deliberate

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