Eurowings decision
With the Eurowings decision , the ECJ declared the addition of half of rent and lease interest to trade tax to be incompatible with the freedom to provide services under Art. 49 (59 old) of the EC Treaty .
Facts and subject of dispute
In the case of trade tax, which is a German peculiarity, profit is not subject to the tax, but another variable called trade income , which is derived from profit through modifications. One of these modifications was (and is, see below) the addition of half of rent and lease interest according to § 8 No. 7 GewStG. This rule primarily affects lease payments . This is to a lump sum equal treatment of companies they have purchased, and (in the civil and economic) ownership use standing assets and companies that hire these assets and where the rental payments reduce the gain can be achieved. The only half addition should take into account that at least the depreciation reduces the profit.
However, this provision only applies if the rent and lease payments are not already subject to trade tax at the recipient of these payments (i.e. usually the lessor). This is to avoid a double burden of trade tax. As a result, half of the lease payments are only added if the lessor is not subject to trade tax, e.g. B. is a private person or an entrepreneur who is not subject to trade tax or is based abroad.
In accordance with the applicable German tax law, Eurowings Luftverkehrs AG was assessed for trade tax in 1993. Lease payments for an aircraft that she had leased from an Ireland- based company were added to half of her commercial income. Eurowings AG lodged an objection against this procedure and, after its rejection, filed a lawsuit with the tax court , since in its view, according to Section 8 No. 7 GewStG, it was incompatible with the freedom to provide services under the EC Treaty. This question was then referred to the ECJ as a reference for a preliminary ruling .
The decision of the ECJ
The Federal Government had joined the procedure and took the position that the above-mentioned provisions would not discriminate against companies based in other Member States, since they were not subject to German trade tax and were therefore not in a comparable situation. By restricting the regulations to the case that the lessor is not himself subject to trade tax, there are also additions in domestic cases in some constellations. However, a single entry of the payments is always ensured.
The ECJ, on the other hand, stated in its judgment of October 26, 1999 that the freedom to provide services not only prohibits discrimination , but also all restrictions on cross-border services. Since the cases in which there is also a leasing from a German lessor are not of great economic importance, the regulation of § 8 No. 7 GewStG primarily applies to foreign lessors, who are never subject to trade tax. It is therefore disadvantageous for German companies to rent assets from foreign companies. The resulting unequal treatment of German lessors and lessors based in other Member States is not justified and therefore incompatible with the EC Treaty.
Consequences of the judgment
Rent and lease interest, which also includes leasing installments, are to be added half of the total amount of § 8 No. 1 GewStG, after deducting an allowance of € 100,000 (§ 8 No. 1 aE GewStG) must then be added to a total of 25% of the trade income.
Web links
supporting documents
- ^ Case law: C-294/97 - dejure.org. In: dejure.org. Retrieved September 3, 2015 .
