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LM Audit & Tax GmbH for many years is acting as Tax Compliance Boutique for Family Offices, Real Estate Developers and Real Estate Funds.
In our new brochure we present our firm and our focus & services.
Please contact us!
Press Release No. 77/2021 of 18 August 2021
– Interest on back taxes and tax refunds –
In an order published today, the First Senate of the Federal Constitutional Court held that the interest incurred on back taxes and the interest paid for tax refunds pursuant to § 233a in conjunction with § 238(1) first sentence of the Fiscal Code (Abgabenordnung – AO) is unconstitutional insofar as the interest is fixed at 0.5% per month for periods from 1 January 2014.
Taxpayers incur interest of 0.5% for back taxes after the expiry of an interest-free grace period (generally 15 months). This amounts to unequal treatment of taxpayers whose taxes are only assessed after the expiry of the grace period in relation to taxpayers whose tax assessments become final during the grace period. Measured against the general guarantee of the right to equality following from Art. 3(1) of the Basic Law (Grundgesetz – GG), this unequal treatment is constitutional with regard to interest incurred from 2010 to 2013, but it is unconstitutional with regard to interest incurred in 2014. Applying a lower interest rate would be an at least equally suitable means for achieving the purpose of the law, while resulting in less unequal treatment. The interest paid to taxpayers for tax refunds pursuant to § 233a AO is also incompatible with the Basic Law. The provisions continue to apply for interest periods until 2018, but they are declared inapplicable for interest periods beginning in 2019. The legislator must enact provisions that are compatible with the Constitution by 31 July 2022.
Facts of the case:
§ 233 AO governs the interest taxpayers incur on back taxes and the interest paid to taxpayers for tax refunds. Taxpayers are liable for interest from the time the tax arises, even before they receive a tax assessment (according to the principle of interest on taxes from the time they arise). However, interest does not start to accrue at the end of the calendar year in which the tax arose, but only after an interest-free grace period of generally 15 months. Thus, the imposition of such interest payments only affects those taxpayers whose taxes are initially assessed or amended after a rather long period of time has passed since the tax arose. Of practical relevance in this context are (amendments to) tax assessments, in particular following a field audit. Pursuant to § 238(1) AO, interest is 0.5% for every full month, amounting to 6% per annum. Interest is only incurred in respect of the types of taxes listed in § 233a(1) first sentence AO: income tax, corporation tax, capital tax, VAT and trade tax. The interest works both in favour of taxpayers (in case of tax refunds) and to their disadvantage (in case of back taxes). The reasons for a late tax assessment, and in particular whether it is due to the taxpayers or the tax authority, are irrelevant to calculating interest.
The constitutional complaints concern the charging of interest on trade tax arrears pursuant to § 233a AO following a field audit. The complainants challenge the ordinary court judgments upholding the charging of interest. They indirectly challenge § 233a AO, insofar as § 238(1) first sentence AO is applied when calculating interest. The period under review in this case is the period from 1 January 2010 to 14 July 2014.
Key considerations of the Senate:
I. Interest on back taxes pursuant to § 233a in conjunction with § 238(1) first sentence AO was initially constitutional. However, the provision is no longer compatible with Art. 3(1) GG insofar as an interest rate of 0.5% per month is applied to interest periods in 2014.
1. As the law currently stands, taxpayers whose taxes are only assessed after the expiry of the grace period are treated unequally in relation to taxpayers whose taxes are assessed during the grace period. Only the former group is subject to interest charges.
2. Especially strict proportionality requirements apply when it comes to the justification of such unequal treatment.
a) The general guarantee of the right to equality under Art. 3(1) GG does not preclude all differentiation on the part of the legislator. Differentiations, however, must always be justified by factual reasons commensurate with the aim and the extent of the unequal treatment. Depending on the subject matter of the legislation and the criteria for differentiation, the legislator must observe varying limits, which may range from a mere prohibition of arbitrariness to strict proportionality requirements. Stricter limits for the legislator may arise from the freedoms affected in a given case. Moreover, the constitutional requirements become stricter where statutory differentiation is based on grounds that individuals can only influence to a lesser degree. This general standard derived from the right to equality also applies in respect of setting out how the interest is incurred (on taxes when they arise, pursuant § 233a AO) and fixing the interest rate (§ 238 AO).
b) Based on these standards, stricter proportionality requirements apply in the present case. The interest incurred by taxpayers on the basis of taxes as they arise pursuant to §§ 233a and 238 AO essentially only affects the general freedom of action under Art. 2(1) GG. By contrast, freedom of property guaranteed by Art. 14(1) GG is unaffected from the outset given that imposing an obligation to pay interest is not so onerous as to have a fundamental impact on the financial circumstances of the taxpayers. That being said, the timing of the tax assessment and thus whether the grace period will have expired is largely out of taxpayers’ control. The timing of the tax assessment lies in the hands of the tax authorities or – in the case of trade tax – usually also of the municipalities.
3. § 233a in conjunction with § 238(1) first sentence AO initially satisfied the stricter justification requirements applicable in this context and was constitutional.
a) The imposition of interest from the time taxes arise aims to compensate for the fact that taxes are assessed and become payable at different times for individual taxpayers. This is a legitimate aim. Interest is imposed on back taxes based on the assumption that taxpayers whose taxes are assessed late have a theoretical interest advantage. The interest incurred under the challenged provisions is aimed at neutralising this advantage. Interest incurred from the time taxes arise is suitable for helping achieve this aim. In principle, this also holds true when considering the amount of interest charged, given that at least until 2014, it was generally still possible to earn interest on the market.
b) As such, the interest incurred from the time taxes arise is also necessary. No equally suitable means is available for achieving the purpose of the differentiation: neutralising taxpayers’ actual liquidity advantage is not equally suitable, nor is designing the obligation to pay interest in such a way that interest on tax arrears is only payable if the taxpayers themselves are responsible for the late tax assessment. There are no concerns as to the necessity of the interest incurred, also with respect to the fixed rate. Variable interest rates do not per se lead to less inequality than fixed interest rates.
4. However, imposing interest of 0.5% per month is no longer necessary for periods in 2014 and violates the right to equality under Art. 3(1) GG.
a) In order to simplify administrative processes, the legislator may in principle apply typification (Typisierung) to determine taxpayers’ interest advantage arising from a late tax assessment. However, the legislator may not choose an atypical case as its model; when establishing standards, it must realistically base its determination on a typical case. Since the legislator never provided explicit reasons for the amount of interest charged, an overall examination of the ascertainable motives and considerations is required in order to establish the – at least presumed – main criteria for the calculation of the interest rate. The legislator imposes interest on back taxes to cancel out an advantage. This is based on the legislator’s assumption that the advantage to be cancelled out here is a potential interest advantage. The legislator set this interest advantage at 0.5% per month in 1990, based on the existing provision determining interest for other cases in the Fiscal Code, § 238 AO. The only reason for this provided by the legislator was the practicality of the existing fixed interest rate. However, it is also ascertainable that this decision was tied to the discount rate at that time, which has been replaced by today’s base rate. The legislator evidently took into consideration the market rate, setting the same rate for interest charged on back taxes and interest paid for tax refunds. Overall, these criteria used by the legislator for setting out standards for fixing the interest rate adequately reflect the potential advantage taxpayers may gain from a late tax assessment.
b) Based on these considerations, the interest of 0.5% per month payable on back taxes was initially constitutional. When the 1990 Tax Reform Act – which introduced the current interest system into the Fiscal Code – was adopted, the legislator was correct in assuming that this interest rate reflected the potential advantage gained from a late tax assessment. The annual interest rate of 6% roughly corresponded to the conditions on the money and capital markets, which were relevant for establishing the standard in this regard.
c) Even though the legislator generally has a prerogative of assessment, applying an interest rate of 0.5% per month is no longer justified when the interest rate determined by way of typification proves to be obviously unrealistic over time due to changed factual circumstances. This has been the case since at least 2014.
Following the financial crisis in 2008, an environment of structurally low interest rates has emerged that is no longer a reflection of usual interest rate fluctuations. This becomes clear when considering how the base rate has developed. While the base rate was above 3% in 2008, it rapidly fell to 0.12% in the course of 2009. It has been negative since January 2013. Given that the discount rate was between 2.5% and 8.75% in the fifty years of its existence, and the base rate ranged between 1.13% and 3.32% before 2009, this development represents a low-interest environment no longer indicative of the usual interest rate fluctuations, but rather, at least since 2014, of a structural and lasting nature. The development of interest rates on the capital markets has followed a similar trend. In 2014, the 6% per annum interest rate had already deviated so far from the actual market rate that it was about twice as high as the maximum interest that could still be earned on the market. The lending rates, which must be taken into account for establishing standards in this context, have also followed the downward trend described above. The interest rate of 6% per annum, determined by way of typification, is therefore obviously unrealistic, at least since 2014, given the changed factual circumstances following the financial crisis. In the current environment of entrenched low interest rates, this interest rate is clearly no longer capable of sufficiently reflecting the potential advantage taxpayers may gain from late taxation. Since the current system of interest incurred from the time taxes arise is based on an annual interest rate of 6%, it now generally has an excessive effect, at least for periods in 2014, and has thus become unconstitutional.
5. For interest periods until 2013, the statutory interest rate is increasingly incapable of achieving the purpose pursued with the imposition of interest on tax arrears. However, for these periods, the interest rate does not yet have an obviously excessive effect. Nor does it violate the principle of proportionality in its strict sense. It is not yet disproportionate to such an extent that it is conspicuously misaligned with constitutional law. In respect of these periods, the interest rate also does not violate the prohibition of excessive measures (Übermaßverbot) following from Art. 2(1) in conjunction with Art. 20(3) GG. The fixed interest rate determined by way of typification has advantages for administrative practice that are still in adequate proportion to the resulting unequal treatment of taxpayers liable for interest payments. Until 2013, the low interest rate environment had not yet become so entrenched that the statutory interest rate generally appeared obviously unrealistic.
II. Insofar as it is admissible, the constitutional complaint in proceedings 1 BvR 2237/14 is unfounded given that it concerns interest payable for 2010 to 2012.
III. The constitutional complaint in proceedings 1 BvR 2422/17 is well-founded in part. Insofar as it concerns the interest period from 1 January 2014 to 14 July 2014, the decision of the Administrative Court (Verwaltungsgericht) violates the complainant’s fundamental right under Art. 3(1) GG. The decision of the Higher Administrative Court (Verwaltungsgerichtshof) violates the complainant’s fundamental right to effective legal protection following from Art. 19(4) GG. For the rest, the constitutional complaint is unfounded.
IV. § 233a in conjunction with § 238(1) first sentence AO is declared incompatible with the Basic Law in its entirety for all interest periods from 1 January 2014. Given the comprehensive approach chosen by the legislator, the interest rate pursuant to § 233a AO is not merely incompatible with the Basic Law with regard to interest charged on tax arrears to the disadvantage of taxpayers, but also with regard to interest paid on tax refunds in favour of taxpayers. However, the provision continues to apply in respect of interest incurred from 1 January 2014 to 31 December 2018; the legislator is not required to retroactively enact provisions that are constitutional for this period. By contrast, for interest periods from 2019, the provision remains inapplicable. The legislator is required to enact new provisions by 31 July 2022, which must apply retroactively to all interest periods from 2019 onwards and to all acts of public authority that have not yet become final.
Decision of the Federal Constitutional Court:
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– BFH confirms positive court ruling from 2016
Management shares, mostly in companies that are part of a group, are a common instrument for incentivising managers.
Not least in the run-up to restructuring and corporate transactions, the aim is also to align the interests of shareholders and management.
Management shares in portfolio companies are thus also common in the private equity fund environment. The question of taxation as wages (fully taxable under the progression system) or (privileged) as capital income subject to withholding tax thus naturally leads to conflicting views between taxpayers and tax authorities.
In a first relevant ruling from 2016 (IX R 43/15), the German Supreme Tax Court (Bundesfinanzhof, BFH) denied the qualification of a manager’s share in their employer as wages. The fact that, in the disputed case, the share was offered exclusively to executives and that rights of exclusion and termination applied in the event the employment was terminated was ultimately irrelevant. At that time, the management share was qualified as a special legal relationship independent of the manager’s employment.
This trend in court rulings, which is advantageous for the application in practice, was confirmed by the BFH in 2 further recent rulings from December 2020, both published on 27/05/2021.
In ruling VIII R 40/18, shares in an affiliated company within the group were offered to a selected group of employees (“managers”) for purchase at USD 0.0625 per share, in this case a total of USD 10. The sales proceeds per share achieved a good 3 years later amounted to approx. USD 1,750 per share.
The BFH ultimately ruled that the share was a separate source of income independent of the employment, if:
The mere fact that the share is held by an employee of the group of companies and was only offered for purchase to a selected group of employees and moreover, as argued by the tax office, the employee did not bear any significant risk of loss, with the simultaneous possibility of achieving an extraordinarily high return, did not result in the qualification of the sales proceeds as income from employment.
In ruling VIII R 21/17, a self-employed management consultant indirectly held a share in a holding company via a GbR [partnership under the German Civil Code]. The tax office qualified the later significant sales proceeds arising from the share as remuneration for the plaintiff’s consulting services. The action and appeal filed against this at the BFH were successful. Here as well, the BFH ruled that an equity investment only counts as business assets in exceptional cases and confirmed that, according to the BFH’s established practice, financial transactions by members of the liberal professions are generally privately initiated and lead to income from capital assets if the equity investment has its own economic weight compared to the freelance activity, e.g. if the taxpayer is primarily concerned with the capital investment and other aspects such as the acquisition of orders as merely a desirable side effect take a back seat. Moreover, it was also decisive in this case that the investment was acquired and sold at the market price and that the shareholder bears the full risk of loss arising from the investment. The increased chance of profit associated with the possibility of investment did not play a part in this respect, since according to the BFH, such a chance is inherent in every equity investment. As a result, there was no evidence that the plaintiff had earned a non-market-based, increased rate of return that could qualify as an additional bonus payment for his consulting work.
Note from practical experience:
Both rulings from 2020 clearly show that, also in view of the amount of the sales proceeds often at issue in relation to the acquisition costs (ex post), which tend to be classified as low, the dispute with the tax office is often predetermined in comparable situations.
It is also significant in this context that in the case of ruling VIII R 40/18, criminal tax investigations had already been initiated against several employees of the company due to the tax treatment of the proceeds achieved from the sale of shares.
In the case of ruling VIII R 21/17, the auditors came to the conclusion during a tax fraud investigation that the payments made due to the sale of shares were to be regarded as remuneration for the plaintiff’s consulting work.
In this context, it is all the more gratifying that the BFH has now worked out clear guidelines for the treatment of sales proceeds from management shares as capital income and the distinction from treatment as wages and salaries. They should provide taxpayers with good arguments in similar cases.
From our point of view, the transparent disclosure of the facts, e.g. in the income tax return of the managers involved, continues to be important in order to eliminate the accusation of “concealment” later on. The issue of the valuation of the shares in the case of purchase and sale remains unresolved; the BFH did not have to comment on it in the cases dealt with. This means that particular attention will continue to be paid to the issue of share valuation at the relevant taxation dates.
German Supreme Tax Court Decisions:
Loss of rent revenue resulting from vacancies reduces the return on any real estate investment. Especially in times of COVID 19 such vacancies are a possible scenario. In addition to the already painful rent losses, operating costs that could otherwise be recharged to the tenant must be borne in full by the asset owner. Additionally, due to permanently increasing tax-rates, real-estate tax is developing to a significant cost-factor for both, tenants and property owners, here particularly in case of vacancies. Real estate lessors whose property is vacant for a longer period can reclaim a part of their paid real-estate tax.
This article is to illustrate the application procedure and to remind property owners of the filing-deadline 31st March.
In FYB 2018 we reported last on current focus points in company tax audits. A lot has happened since then, not only in terms of case law, but also in legislation. Some of the keywords here would be “ATAD” and “DAC6”, whose impacts will certainly be noticeable far beyond the turn of the year 2020/2021. In this contribution, we will once again present some current topics from our real estate practice and recommend some actions, if possible.
We had to make a selection, of course, so that other perennial issues such as the temporary reduction of the value added tax needed to be left out for lack of space.
Tax Advisor, Managing Director, LM Audit & Tax GmbH, München
The initiation of criminal tax proceedings by German tax offices, mostly as a result of innocent mistakes, according to the motto “shoot first, ask questions later” is by now common practice, which some managing directors have already experienced painfully at first hand. The core question here is usually the demarcation between simple error correction on the one hand and (actually undesirable) punitive voluntary declaration on the other.
On 23 May 2016, the Federal Ministry of Finance issued a Decree on the Application of the Fiscal Code (AEAO) regarding Section 153 on the question of the delimitation of the declaration of rectification pursuant to Section 153 AO and voluntary disclosure pursuant to Section 371 AO. Paragraph 2.6 states: “If the taxpayer has set up an internal control system which serves to fulfil tax obligations, this may be an indication that there is no intention or negligence, but this does not exempt the taxpayer from examining the individual case in question”. The message to the legal representatives of companies is that a coherent tax compliance management system (CMS) serves to avoid allegations of organisational failure and thus significantly reduces the probability of the initiation of criminal tax investigations. Part I of following paper will present the history and necessity of a tax CMS. Parts II and III then present case studies from our daily consulting work. In Part IV, we share practical experiences in setting up tax compliance systems.
Tax Advisor, Managing Director, LM Audit & Tax GmbH, München
Lawyer, Tax Advisor, LM Law Rechtsanwaltsgesellschaft mbH, München
Certified Public Auditor, Tax Advisor, LM Audit & Tax GmbH, München
German tax law is in a constant state of flux; after months of coalition negotiations, the government is functioning once again, and 2018 sees another Annual Tax Act. It focusses, once again, on share deals in terms of both the land transfer tax and income tax. Key topics such as the appropriate rate of interest on shareholder loans (keywords: general group recourse), or the repayment of contributions from non-EU countries, have gained in momentum. In the area of the recognition of liquidation losses from equity investments held in private assets and losses from loans, the rulings of the German Federal Fiscal Court (BFH) show a positive trend. At the moment, there is also hope that the Federal Fiscal Court (BFH) will change its mind in the area of commercial infection. This article aims to highlight the key developments and their relevance for the practice.
BFH I R 81/16 of 14/11/2018
In a recent judgement, the Federal Fiscal Court (BFH) confirmed the legal obligation of foreign real estate corporations to keep books of account (accrual based tax accounting).
Facts of the case (in brief):
The plaintiff was a public limited company under Liechtenstein law. According to the findings of the tax office, it had neither a permanent establishment nor a permanent representative in Germany. Thus, its only fiscal connection was the situs of a let property in Germany regularly leading to a limited tax liability for so-called fictitious business income under Section 49 (1) no. 2f of the Income Tax Act (since 2009).
The present dispute concerned whether an obligation indubitably existing under foreign law to keep books of account according to Section 140 of the General Tax Code (AO), which concerns accounting obligations ‘under other laws’, also covers foreign law. In its present judgement, the BFH answered this in the affirmative.
Comment by LM:
In the past, in determining the lettings income in cases of a limited tax liability arising from a let property located in Germany, the so-called cash-based-accounting method was usually applied.
This procedure was helpful for, among other things, controlling the interest paid (outflow principle in net income method) within the scope of the so-called interest cap (Section 8a of the Corporation Tax Act).
The BFH’s judgement is likely to be of only limited significance for current taxation practice, since the Federal Finance Ministry had also argued in favour of such an accounting obligation as early as in a letter dated 16 May 2011 (no. 3).
As a stop-gap, tax offices had required books of account, i.e. a tax balance sheet, at the latest when the turnover and profit limits under Section 141 of the AO had been exceeded. To that extent there is now legal certainty.
In practice, it is likely – not least for pragmatic reasons – that foreign annual accounts (where there is an accountancy obligation abroad on grounds of the legal form or size of a company) have as a rule been transitioned into German tax balances for some time. But the judgement also shows that merely copying a foreign balance sheet is not sufficient for German taxation purposes.
On 10 April 2018, the German Federal Constitutional Court (BVerfG) announced its decision in relation to standard rateable values for the assessment of property tax. The court ruled that the provisions of the German Valuation Act (BewG) for the standard rateable valuation of property in the states of former West Germany have been incompatible with the general principle of equal treatment, at least since the beginning of 2002. It has given the German legislature until the end of 2019 to introduce a new provision. The valuation rules that were deemed unconstitutional will apply for a further five years after that, but not after 31 December 2024 (BVerfG, judgement dated 10 April 2018 – one BvL 11/14, 1 BvL 12/14, 1 BvL 1/15, 1 BvR 639/11, 1 BvR 889/12).
Standard rateable values for property are still determined today in accordance with the German Valuation Act based on the valuation baseline of 1 January 1964. In the states of former East Germany, the valuation baseline is actually 1 January 1935. The German Federal Fiscal Court (BFH) concluded in its referral decisions (BFH dated 22 October 2014 – II R 16/13, BStBl [German Federal Tax Gazette] 2014 II p. 957; 22 October 2014 – II R 37/14 and 17 December 2014 – II R 14/13) that the standard rateable values for property are unconstitutional as they violate the general principle of equality (Art. 3 (1) of the Basic Law for the Federal Republic of Germany (GG)), at least since the valuation baseline of 1 January 2008 and/or 1 January 2009. The plaintiffs also essentially claimed a violation of their basic rights under Art. 3 (1) GG in their constitutional complaints (1 BvR 639/11 and 1 BvR 889/12).
The judges of the German Federal Constitutional Court also made the following findings inter alia: