Germany: German Tax and Legal News-June 2004

Tax Revenue Shortfall Of € 10 Bn In 2004 Expected

The ministry of finance released the latest six-monthly tax revenue estimates on May 13. The estimates for 2004 have fallen by € 9.6 bn from the previous estimate of November 2003. The shortfall in the following years is expected to be even higher - € 15.2 bn in 2005, € 18.4 bn in 2006 and € 17.8 bn in 2007. The estimates are based on present law and assume GDP growth rates of 2.3% in 2004, 2.7% in 2005 and 3.4% in each of the years thereafter. These planned, or assumed, growth rates contrast with the provisional actual growth rate in the first quarter of 2004 as published by the Statistics Office of 0.4% over the previous quarter and 1.5% over the first quarter of 2003.

Initial reactions from members of the government seem to suggest a degree of surprise at the amount of the deficits. The finance ministry has published statements to the effect that the "not yet finally secured economic upswing" would be endangered by tax increases or cuts in government spending. It has also said that it wishes to keep to its plan of cutting housing grants in order to free funds for science as an "example of the urgently needed improvement in the quality of government spending". The chancellor preceded the finance ministry with a call a day earlier on other Eurozone governments for a "growth oriented" interpretation of the Stability and Growth Pact of Maastricht. He claimed that there was a debate within Europe on whether the 3% limit (on the annual budget deficit) was the only "economically reasonable criterion" and said that he expected discussion on this point to intensify during the next few months.

The Bundesrat has approved the ratification bills for an amendment to the inheritance tax treaty with Austria and for the revised general treaty on taxes on income and capital with Poland. This completes the the German side of the legislative steps for the exchange of the ratification instruments for the treaties to formally enter into force in both countries.

The EU Council order on the Societas Europaea (SE or European Company) requires member states to amend their national legislation as necessary for SE's to be formed locally in time for them to begin active trading as of January 1, 2005. The deadline set by the EU for the national legislature is October 8, 2004. To this end the Ministry of Justice has drafted an SE Introduction Bill jointly with the Ministry of the Economy and Labour. The cabinet adopted the draft at its meeting of May 26.

The Bill seeks to legislate two new statutes into law, the SE Implementation Act and the SE Participation Act. It would also change a number of other statutes - mostly regulating the processes of litigation - in order to give the SE from the outset full scope to deport its legal personality. The Implementation Act transposes the European Council Order (EC) No. 2157/2001 of October 8, 2001 on the SE statute into German law, whilst, at the same time exercising the national options and derogations. This Act governs the formalities of formation, whether by merger or by acquisition - a Holding SE, including, especially the rights of protection for dissenting shareholders and creditors. However, neither are able to hold up proceedings against the will of the majority, although thereare circumstances in which the

creditors can demand a surety. The Act also allows the SE to choose between two management structures, a dual system of a management and a supervisory board, and a single system of a board of directors who in turn should elect one or more managing directors. The supervisory board may not be less than three persons or more than 21 (share capital of over € 10 m). The board of directors may be less than three if the share capital is not more than € 3 m (€ 120,000 is the minimum) but otherwise is subject to the same size limits as the supervisory board.

The SE Participation Act regulates the participation of the employees in the running of the company. This includes both the traditional workers' council level of representation of employee interests before management and the co-determination level of employee involvement in the supervision of management. The Act sets forth procedures for the employees to elect a negotiating committee in order to reach agreement on these matters with the employer. Only if negotiations fail, does the model foreseen by the Act become compulsory. Those involved in the negotiations are protected against unfair pressure from the employer and are also given rights to consult trades union and other outside bodies - including experts - as necessary.

The ministry of finance has drafted a bill for the enactment of the EU directive on the supervision of finance conglomerates into national law in time for it to take effect in 2005. The bill is to be submitted to the cabinet for discussion this week. The main purpose is to ensure joint supervision of finance conglomerates, that is of banks and insurance companies operating within the same group, in order to prevent them from double-counting their capital when computing their solvability ratios. Put simply, the fear is that the bank would treat its investment in an insurance company (or vice versa) as an unfettered asset for risk coverage, whilst ignoring the fact the insurance company was not, itself, risk-free. Organisationally, this form of joint or combined supervision is quite feasible given that both sectors are supervised by the same authority, the Financial Services Supervision Authority. The ministry's draft defines a finance conglomerate as a group with both banking and insurance operations, with each sphere contributing at least 10% to the group's business, or where each sphere contributes at least € 6 bn to the consolidated gross assets (balance sheet total). If the lead company of the group is not, itself in financial services, at least 40% of the gross assets must be in banking or insurance subsidiaries for the question of classification as a finance conglomerate to arise.

The ministry of finance has identified eight potential finance conglomerates. It estimates their combined share of the German market at 14.4%.

The ministry of finance has published its draft of amendments to the official Wages Tax Guidelines for 2005. The Wages Tax Guidelines set forth the detailed regulations on employers for the correct deduction of income tax from employee salaries and benefits. The new Guidelines require the approval of the Bundesrat before they can enter into force.

Most of the amendments are editorial. Others reflect changes in the statute or case law handed down from the Supreme Tax Court. Among the more significant changes are:

• The tax deduction for training and professional education costs has been made slightly more generous in that relief is now available for the costs of employer sponsored initial training or first course of study. Up to now, there has often been some doubt as to whether these costs might be seen as being of a "private" nature.

• Staff assigned from abroad become the income tax responsibility of their domestic host employer if that company effectively bears the cost of the assignment or of the salary paid during its course.

• Parties thrown by an employer to celebrate a round number birthday of an employee are not a taxable benefit for the employee if the circumstances show them clearly to be a function of the employer. Even the amounts falling on the employee himself, his family members and any guests he may invite privately are not taxable unless they exceed the threshold of € 110 per person.

• If the employer has reason to know or suspect that his employee has received benefits from a third party in respect of his employment, he must ask the employee for full details, and the deduct income tax accordingly. If the employee does not reply, or if his reply appears to be incorrect, the employer must inform the tax office forthwith.

• There are various changes to the provisions on employee insurance policies.

On September 17, 2003, the Supreme Tax Court held that a GmbH converted from a partnership could become the subsidiary of an Organschaft with immediate effect, even when the conversion (change of legal form) was retroactive under the Reconstructions Tax Act. The Court's reasoning was that the provision in the Act permitting a reconstruction to be based on a balance sheet as of a date not earlier than eight months before the trade registry filing meant that the change had to be seen in retrospect in all respects as having occurred as of the effective balance sheet date. In the case decided, the regular annual balance sheet was taken as the conversion balance sheet, and the Court held the GmbH in retrospect to have existed as of that balance sheet date even though it was not actually formed until later. This satisfied the Organschaft requirement that the shares in the subsidiary be held throughout the year. The ministry of finance has now issued a decree - dated May 24, but not actually published until June 1 - to the effect that this case only be followed for changes in legal forms. Other forms of reconstruction, particularly splits, spin-offs or hive-downs cannot be seen as giving the new subsidiary a retrospective existence or Organschaft entitlement.

The ministry of finance' latest move in its struggle to contain its VAT losses is its decree of May 24 on the liability of the acquirer of a debt for the VAT included therein, and on the liability of the supplier for the VAT already deducted by the customer as input tax when the basis changes. Both provisions were enacted into law for January 1, 2004, and the new decree fills out some of the details which have been seen to cause difficulties in practice.

The acquirer of a debt - other than for cash or cash equivalent - is liable for any unpaid VAT included therein, once he receives payment from the debtor. The manner of acquisition is unimportant; all forms of lien, pledge, ceding or impounding of receivables can lead to this liability. Among other things, the decree makes it clear that - not withstanding any wording to the contrary - any partial payment from the debtor will be seen as including the relevant portion of the VAT. There is therefore no immediately obvious way for a dealer in trade receivables to free himself of the risk, unless he can pay, or cause to be paid, the VAT himself. Unfortunately, an intending acquirer is unable to check for himself on any open liability with the tax office. On the other hand, only an actual liability can pass to the acquirer of a debt in this way, so there is no risk if the original creditor (supplier) had a debit VAT balance (excess of input tax) in his monthly or quarterly return for the period of the original sale. This continues to apply even if the annual return for the year shows a debt due to the tax office and the taxpayer defaults.

The second part of the decree deals with the repayment obligation of the supplier for VAT already deducted by the customer before the basis for doing so changes. This rather convoluted language primarily addresses the leasing of movable assets such as building or other heavy equipment, where the lessee deducts the full VAT at the start of the lease (by treating the transaction as a purchase) and then defaults on the lease at some point during its term. The seller, or lessor, would only account for VAT on the lease payments as they fell due, so a foreclosure on the lease with or without repossession of the leased goods puts the tax office at risk. Here the decree reconfirms the letter of the law without any respite. The liability of the supplier is the lower of the unpaid tax or of the reduction to the input tax claim, but otherwise the only comfort offered to the supplier/lessor is the suggestion that he "cause" the VAT at issue to be paid by a third party. The decree gives no hint as to how this might be done.

In 1994, the finance ministry issued an omnibus, "implementation" decree giving comprehensive guidance on all aspects of the Foreign Tax Relations Act. It has now brought its decree up to date and reissued it under date of May 14. The revised version reflects statutory changes in the meantime, especially those enacted during the past two years as well as Supreme Tax Court cases. Finance ministry decrees on other subjects have also been taken into account, and regard has been had to the "soft" factor of changing attitudes. For instance, the 1994 statement that double tax treaties take priority over domestic law has transmuted to one announcing that double tax treaties do not preclude the application of the Foreign Tax Relations Act. On the other hand, there has been no particular tightening of the more practical regulations requiring taxpayers to properly identify their foreign trading partners in low tax countries and making them largely responsible for clarifying any doubts on their foreign business transactions. The definition of "active" business remains as ever a matter of substance rather than form. Generally income in a low tax country is deemed to be "passive" unless it can be proven to be "active".

The ministry of finance has issued a decree on the split of interest costs arising in connection with a building used partly by the taxpayer as his dwelling, and partly for the purposes of earning income. The latter includes not only rental income, but also use as a home office. The new decree was prompted by a Supreme Tax Court case of 2003. Under its terms, the building must first be divided into a privately used dwelling and into the portion let or used for business purposes. If possible, the costs should be allocated between the two parts on clear and objective criteria. Any reasonable allocation made by the taxpayer in a manner plain to the outside world, such as in a contract to purchase the building, is to be followed. Any part of the costs that cannot be, or has not been, allocated in this way, should be apportioned over the two units by floor space. Similarly the interest cost falls to one or other of the units if specific financing is apparent. If not, e.g. because the building was built, bought or renovated as a single whole, floor space is again the fall-back key.

The Federal Tax Office has announced that is now prepared to accept online VIES returns (zusammenfassende Meldungen in German) from those VAT payers who have received the requisite registration number. Registration is by way of hardcopy form, signed by hand and delivered to the Federal Tax Office in Saarlouis by post (no scanning or faxing!). The address and the links to download the forms are given in the press announcement of the Federal Tax Office (in German) available from http://www.bff-online.de/15_Presse/Pressemitteilung_ZM.pdf

Supreme Tax Court Cases

Invalid Share Transfer Valid For Tax If Both Shareholders Behave Accordingly

In the case before the Court, a shareholder had sold part of his share to an unrelated third party by way of oral agreement. This was confirmed a year later by notarised deed of transfer which included a statement that all rights and duties attaching to the shares had devolved on the new shareholder a year earlier. Despite the advantage to the taxpayer in having sold the shares a year before the notarial deed, the Court took the view that the sentence in the Tax Management Act (in Sec. 39) reading " Where someone other than the owner exercises the actual control over an asset in a manner enabling him to regularly exclude the owner from any effective influence on the asset for its anticipated useful life, the asset is to be ascribed to him" took precedence over other considerations of legal formality or accounting principle. This, at least, was the court's conclusion where

• buyer and seller were independent parties,

• the purchaser assumes dividend and voting rights or where the seller agrees to exercise "his" voting rights in the interests of the buyer, and

• the share transfer is subsequently confirmed by a valid instrument.

The Investment Grant Act entitles manufacturing and similar businesses in the eastern provinces of Germany to claim investment grants on their capital investment if the assets purchased are - for the next five years - carried as fixed assets on the books of a business or branch in the incentive area and physically remain at a business location within that area. The businesses referred to do not have to be identical. However the Supreme Tax Court - in dealing with the case of a factory lending its fork-lift-truck to a beverage wholesaler - has held that the grant entitlement is lost if a qualifying claimant lends or hires the asset for three months or longer to a business which does not, itself, qualify.

The case before the Court concerned an undeveloped site sold shortly before the local authority began the development work. The contract of sale stated that the buyer should bear all development costs when they arose and also contained a clause releasing the seller from his development cost commitment vis-à-vis a community land development agency. The tax office maintained that the development and sale of the site were connected and that the development costs borne by the buyer were part of the sale proceeds subject to real estate transfer tax.

The Court sided in favour of the taxpayer. It argued that the object of the sale was an undeveloped site, and the assumption of the development costs by the buyer was the assumption of an obligation which, in any case, rested on him as the new owner. As the new owner, the development work was in his interests, not in those of the former owner as seller. The assumption of the seller's obligations to the agency was not to free the seller of a commitment, but to enable the buyer to fulfil his duty of paying the development costs when the time came.

Under the old, "imputation" system of corporation tax in force up to 2001, foreign shareholders were, under certain circumstances, entitled on receipt of a dividend to a refund of corporation tax previously paid by the company. The statutory provisions regulating the exact entitlement and the procedures for claiming it equate the refund to a dividend and therefore subject it to withholding tax at the tax treaty rate for dividends. The taxpayer claimed, however, that the tax refund fell under the treaty definition of "other income" as opposed to "dividends". Since other income is only taxable in the state of residence, Germany would be unable to levy any withholding tax. The taxpayer's main argument was that the refund was paid directly to the shareholder by the tax office and was not therefore a distribution by the company.

The Court rejected the taxpayer's argument. Quoting the published work of the chairman of the senate trying the case, it made the point that all income from shares ranks as a dividend under the tax treaties in line with the OECD model (as was the case here). Decisive was the economic connection between the income (the tax refund) and the shareholding. There was always this connection wherever the shareholder received income in that capacity. The fact that the refund was paid neither by the company, nor on any basis in company law was not relevant. Rather, the important point was that the refund was only due to the shareholder in direct consequence of the dividend, and that it was in effect a repayment of additional corporation tax paid by the company in consequence of the same dividend. These principles also apply to hidden distributions - the subject of this case.

The taxpayer, a former managerial employee was invited by his employer to avail himself of a management buy-out scheme. To this end, he carried out preliminary negotiations with banks and other financers, appointed a consultant to draw up a business plan and took the first steps towards forming an AG as the corporate vehicle for the business unit to be acquired. However, the project was soon abandoned, although not before not inconsiderable expense had been incurred. The tax office denied a deduction, and this position was ultimately upheld by the Supreme Tax Court. The Court's reasoning was:

• The costs were incurred before the taxpayer had irrevocably decided to acquire the target business, although the decision to form the AG had already been taken. They could therefore only be regarded as part of the costs of acquisition of an investment to be held as a private asset. Such costs are directly connected to investment income, although the wording of the statute precludes their deduction.

• Even if costs were incurred in vain, they can still rank as costs of acquisition. If the object to be acquired is depreciable or amortisable, they can be deducted in full once the project is abandoned. However, this does not apply to an investment held privately.

• The costs could have been deductible as a trading loss, if the asset had ranked as a business asset. The Income Tax Act defines an investment as a business asset if the private individual shareholder had held at least 1% of the shares at any time during the previous five years. This test of fact cannot be met in respect of a company that has not yet been formed.

• For the same reason, the costs cannot be equated to the liquidation loss on a company held as a business investment.

Once tax assessments have become final and binding, they can only be reopened in exhaustively and narrowly defined circumstances. Two possible cases are a change to a formal notice serving as a basis of another assessment, and a retrospective change in law or circumstance. The Supreme Tax Court has just published a case holding the late adjustment of an Organschaft subsidiary's income falling to taxation in the hands of the parent to be neither. In the case decided, the assessment of the parent had been kept open until completion of the tax audit on the subsidiary. The subsidiary's management disputed the findings, but the tax office nevertheless formally notified the parent of the (higher) revised income to be taxed within the Organschaft. The parent's tax office raised a revised assessment on the parent which both parties allowed to become final and binding. Four years later, the tax office of the subsidiary accepted the arguments of the subsidiary's management and issued a second revised notification reducing the taxable income back to its original level. The tax office of the parent refused to follow this change, saying that the parent's assessment for the year was final and unalterable.

The Supreme Tax Court's explanation of its ruling was purely formal. It accepted that the determination of the income to be taxed by the parent was, in practice, a matter between the subsidiary's management and tax office, but nevertheless held that the tax office of the parent was not legally bound to follow the notification from the tax office of the subsidiary. This notification did not therefore qualify as a basis of assessment in the sense needed to justify reopening an otherwise final assessment on the parent. It was also not a retrospective change in law or circumstance, or even a new fact. The taxpayer's objection that he was effectively being denied access to the courts in violation of a constitutional right was flatly rejected by the Court, which pointed out that the parent could have filed its own appeal.

The case before the Court was brought by the purchaser of a building for a specific purpose. This purpose was thwarted by an injunction issued on a suit brought by neighbours who disapproved of the intended use. The restriction on the use seriously reduced the value of the building, both to the new owner and on the open market. This loss had to be borne by the purchaser as the contract of sale expressly excluded any warranty of suitability for any specific use. The purchaser claimed an extraordinary, or non-recurring, write-down in the amount of the loss under the technical or economic obsolescence provision. The tax office refused the claim because the loss was inherent in the asset when bought, rather than arising whilst the asset was in use for the purposes of earning taxable income. The Court confirmed the tax office' position, pointing out that the restriction placed on the use merely brought inherent flaws in the building to the fore, and was not a new development. Effectively, the purchaser had paid too much for the building, rather than suffering a loss after its purchase. The technical and economic obsolescence provision, on the other hand, was intended to reflect new developments during the use of an asset that permanently reduced its value to the business. The loss in value could thus be argued as a charge against current income. This case places new buildings purchased for too high a price on a par with those constructed at too great a cost. In both cases the deficiency arose before the income earning activity started. In both cases the taxpayer's remedy lay in being able to amortise the higher cast actually paid over the building's useful life.

Redundancy payments enjoy favourable tax treatment as non-recurring income. The idea is to compensate for the effects of the rising scale of rates when applied to large, lump sum payments in compensation of loss of future income. Consequently, the tax privileges are generally lost if the redundancy payment is spread over different tax years or periods of assessment.

The case before the Court concerned an employee leaving voluntarily in advance of a mass lay-off of redundant staff. He agreed a redundancy payment with his employer in a contract with an improvement clause to bring the payment to the level set by any future "social plan" for those laid-off. The object was to enable the individual to leave in advance of the closedown, but not to penalise him for doing so. However, the net effect at the end of the day was that he received a second, smaller payment in the following year, and this gave the tax office grounds for withdrawing his privileged treatment. The Court, though, reinstated the position, saying that an exception from the general rule seemed called for where the main compensation was supplemented in later periods by a lower amount and for social reasons. The purpose of the privilege would be compromised if the later payments were to lead to a retrospective tax charge on the higher main payment. At least, this is the case where the supplementary payments are less than the main payment "by far". The condition is fulfilled where the supplement is 42.3% of the main payment, or 29.7% of the total.

The case concerned a car leasing partnership which worked closely with the banking subsidiary of its general partner. The bank and the general partner were located in one town and the partnership in another. The general partner managed the affairs of the partnership from its own offices; however it assigned three employees to work full-time in the partnership offices on day-to-day administration and on acquiring new lessees as customers. Legally, the three individuals remained the employees of the general partner. This entity paid them their wages and other benefits, but recharged the cost (without a mark-up) to the partnership. The suit was brought by the town of the general partner claiming that it should have the right to tax all the income of the partnership as it was the only location with employees.

The Court held that the three employees were located on the premises of the partnership. Their wages total should thus be allocated to that town which was where they worked. Their formal employment was less relevant, as was the fact that they were supervised from the offices of the general partner. In this latter respect, the general partner was acting as such, and this was not a ground for allocating the employees to a different community. The entire partnership activities of all partners was to be reflected in the wages total allocations in a partners' salary lump sum of € 25,000, falling, in this case, to the plaintiff. This might seem, so the Court, unfairly low in the light of the actual work done and responsibilities borne, but it was clearly prescribed by the statute - the Trade Tax Act - and was not open to judicial interpretation.

The Supreme Tax Court has resolved to lay before the ECJ the question as to whether the organisers of temporary schooling abroad with paying guest accomodation and support services qualify as travel agencies or whether their services are VAT-free as education.

For some time, the European Commission has been looking for ways to ease the VAT lot of cross-border suppliers of goods and services within the EU. Supplies to other businesses (B2B) are not seen as a major problem, given the widespread application of reverse-charge/acquisition tax schemes for effectively moving the VAT reporting and accounting obligation from the non-resident supplier to the domestic customer. However, sales to consumers (B2C) cannot be treated the same way, since consumers do not have their own local VAT reporting status. The Commission, though, points to the administrative and language difficulties often faced by suppliers with VAT obligations in two or more countries, which it sees as an impediment to the full blossoming of the internal market. Its proposal is to establish a "One Stop Shop" system of VAT reporting, whereby each trader would report his entire Europe-wide sales (and inputs) to his own tax office or other point within his home country. Assessment and collection procedures would follow local rules and customs. The tax on consumer sales abroad would be collected at the foreign rate and forwarded to the responsible authority. The Commission has now called on those affected, including especially smaller businesses dealing directly with consumers, as well as interested members of the public to air their views in a public consultation. The consultation closes on July 31. The details as well as the necessary background information are available from http://europa.eu.int/comm/taxation_customs/taxation/consultations/one_stop_en.htm

Most employee benefits are taxable income for the employee, and in most cases the employer is responsible for correctly accounting for the liability to the tax office in the form of "wage tax". Benefits in kind also often have VAT implications. The rules for the two taxes are not entirely consistent and in any case change frequently. We are offering clients and others a half-day seminar on the current position to be held in German at various locations during the month of June. The seminar covers in some depth the charges to both taxes in respect of meals, travel, company cars, staff sales and discounts from business partners, company outings and functions, PC/internet usage, incentive travel, lodging, job tickets, employee travel passes, anniversary gifts, works busses and staff loans. The cost will be € 230 plus 16% VAT (€ 266.80 in total). The seminar will be held on June 15 in Stuttgart

Those interested in attending are invited to contact Lilli Jundt-Becker of our Frankfurt office for further details at:

Lilli.jundt-becker@de.pwc.com

The end of 2003 saw the enactment of an Investment Funds Modernisation Act with more or less sweeping changes to the taxation regime for investors. Our Düsseldorf and Frankfurt Financial Services Tax Teams have combined to present an afternoon seminar in Düsseldorf on Wednesday, June 30 at which the implications will be discussed in depth. The seminar will cover the following topics:

• Highlights of the taxation of income from funds
• The direct shareholding/fund holding comparison
• Double tax treaty implications on profits and capital gains
• Hedge funds
• Write-down of fund holdings
• Merger of funds
• Practical case - investment fund units in the tax accounts (purchase/income accumulated/income distributed/redemption).

The seminar will be oriented towards the needs of those in the accounts or tax departments of banks, insurance companies, commerce and industry. It will be held in German. The fee will be € 150 per head, together with 16% VAT. Those interested in further details are invited to contact Lilli Jundt-Becker of our Frankfurt office at:

lilli.jundt-becker@de.pwc.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.