Trade tax (Germany)
|Title:||Trade tax law|
|Previous title:||Trade Tax Act 2002|
|Scope:||Federal Republic of Germany|
|Legal matter:||Tax law|
|Original version from:||December 1, 1936
( RGBl. I p. 979)
|Entry into force on:||April 1, 1937|
|New announcement from:||October 15, 2002
( BGBl. I p. 4167 )
|Last change by:||
Art. 5 G of June 29, 2020
( Federal Law Gazette I p. 1512, 1515 )
|Effective date of the
|July 1, 2020
(Art. 12 G of June 29, 2020)
|Please note the note on the applicable legal version.|
The trade tax (abbreviation: GewSt) is levied as trade income tax on the objective profitability of a business enterprise . For this purpose, a trade income is determined for trade tax purposes, which regularly results in a trade tax assessment amount of 3.5% of the trade income. The municipality entitled to levy must levy trade tax at least twice the measured amount (minimum assessment rate : 200%).
A profit-independent taxation of the substance of the business was carried out until 1997 with the business capital tax , since then only in the profit additions, which include certain financing costs in the trade tax assessment base. With the corporate tax reform of 2008 , this component was expanded in order to stabilize business tax revenue.
The trade tax is the most important original source of income for the municipalities in Germany. According to (2) of the Fiscal Code, it is a real tax or tax in kind , even if this classification is controversial after the abolition of the trade capital tax and the wage tax . The trade tax is one of the municipal taxes and property taxes. The legal basis is the Trade Tax Act (GewStG), the Trade Tax Implementation Ordinance and, as general administrative provisions, the Trade Tax Guidelines.
With the payment of taxes one does not acquire a right to a certain state service ( principle of equivalence . It is collected after a suspected cost causation. But although the trade tax is intended as a refinancing for infrastructure measures and settlement costs, its reason is not to compensate for tangible economic advantages.Abs. 1 AO). Nevertheless, the trade tax is often justified with the fact that the commercial enterprises should bear the burdens that arise from their settlement and existence. In fact, no other tax has such a strong
History of business tax
The trade tax was introduced in Germany in 1891 by the Miquel tax reform . The basis for its current form was laid in the real tax reform of 1936, the first trade tax law dates from December 1, 1936. In addition to the trade income tax levied, trade capital and - via the payroll tax - also jobs were taxed. By measuring different numbers was from the three different areas of trade tax base amount determined to be the assessment rate was applied.
In 1978, the wage tax was abolished because of the negative consequences for employment policy. With the Household Accompanying Act 1983 , a restriction on the deduction of long-term debt was introduced for the first time. Originally, a full addition of continuous debt interest was planned, i. H. Interest payments did not reduce the commercial income. The aim was to treat self-financing and external financing equally , since (imputed) interest on equity also does not reduce the assessment basis. This claim was derived from the objective of taxing objective earning power. However, a change in the law limited this to 60% (from 1983) and 50% (from 1984).
The law to continue the corporate tax reform ended the trade capital tax in 1998, so that the trade tax has become a tax that is only dependent on income - which has led to an increased dependency on the economy. In return, the municipalities received a share in the sales tax .
Up to the assessment period 2007, in addition to the addition of the permanent debt, half of the rent and lease interest was also added if these were not already subject to trade tax at the recipient of the payments (i.e. usually the lessor ). This should avoid a double burden with trade tax. Due to the unequal treatment of German and foreign companies and the associated restriction on cross-border services, the ECJ declared this provision in its Eurowings decision to be unlawful to EU law .
The last major change followed in 2008 with the Corporate Tax Reform Act . This led u. a. to a new treatment of trade tax in determining the taxable profit . From 2008 this is no longer a business expense in accordance with (5b ) EStG and is therefore not deductible. Furthermore, the scope of the addition of finance costs has been expanded considerably. The broadening of the assessment base as well as the elimination of the business expense deduction and the graduated tariff are to be offset by the lowering of the trade tax index and the increase in the trade tax credit at the shareholder level.
Subject of taxation
Taxed commercial operations , either on their form as a corporation or business activities in the sense of income tax law ( individual companies and private companies are detected). An exemption of € 24,500 is granted for natural persons and partnerships ( (1) No. 1 GewStG). For other legal entities under private law (e.g. associations) and associations with no legal capacity, insofar as they maintain economic business operations, an allowance of € 5,000 applies ( (1) No. 2 GewStG). Freelance or other non-commercial self-employed activities as well as agriculture and forestry operations are not subject to trade tax.
The starting point for the assessment of the trade tax is the trade income. This is the profit to be determined according to income tax or corporation tax law . As a rule, the profit or loss is taken over and in individual cases increased by certain amounts (additions, GewStG) or reduced (reductions, GewStG). Both additions and reductions pursue various goals, some of which are justified by the fact that the assessment base is intended to reflect the objective profitability of a commercial enterprise, which is independent of the entrepreneur's financing decision in individual cases. According to the original idea of the legislator, an assumed fictitious standard company works with its own capital, with its own machines, but in third-party (rented) rooms. However, the provisions on additions and reductions have changed several times for fiscal reasons, so that it remains controversial which additions or reductions can be justified with this goal.
Berechnungsschema der Gewerbesteuer: Gewinn aus Gewerbebetrieb (Gewinn) gem. EStG bzw. KStG + Hinzurechnungen − Kürzungen ---------------------------------------------------------------- = Gewerbeertrag vor Verlustabzug − Gewerbeverlust aus Vorjahren ---------------------------------------------------------------- = Gewerbeertrag (abzurunden auf volle 100 €) − Freibetrag von 24.500 € (nur für Einzelunternehmen und Personengesellschaften) bzw. 5.000 € für sonstige juristische Personen des privaten Rechts (z. B. Vereine) sowie gewerblich aktive nichtrechtsfähige Vereine ----------------------------------------------------------------- = Gewerbeertrag × Steuermesszahl (seit 2008: 3,5 %) ----------------------------------------------------------------- = Steuermessbetrag × Hebesatz der Gemeinde ----------------------------------------------------------------- = festzusetzende Gewerbesteuer - Gewerbesteuer-Vorauszahlungen = Gewerbesteuerzahllast
Since 2008, a quarter of the finance costs have been added back to profit. This also applies if the rent and lease payments are subject to trade tax at the recipient of these payments. Financing expenses are the remuneration for debts, the pension payments and permanent burdens, the profit shares of silent partners and the financing shares in rents, leases, leasing installments and licenses. These financing shares are calculated on a lump-sum basis from the total fees paid. With the expansion of the regulation, the previously described EU illegality has been eliminated. In order to exclude small and medium-sized companies from the expansion of the additions, an allowance of € 100,000 is provided.
Interest and other remuneration for debts (
= Total amount of financing fees
= Total amount of additions from financing fees
In addition to financing costs still further positions will be added to winning again: The Profit shares of General Partners of a KGaA have been distributed ( , under the provisions of No. 4 GewStG.) Partial income method previously tax-exempt dividends ( no. 5 GewStG), the shares in the loss of a domestic or foreign commercial co-entrepreneurship ( No. 8 GewStG), grants to promote tax-privileged purposes ( No. 9 GewStG) as well as certain partial value depreciations and sales losses ( No. 10 GewStG) .
The cuts are intended to avoid a multiple burden of real taxes . For example, the trade income is reduced by part of the unit value of commercial property, as this is already subject to property tax. In addition, profit shares from qualifying holdings (more than 15% share) are being reduced, as these were already subject to trade tax at the level of the distributing corporation (so-called trade tax box privilege ). In addition, in order to take into account the domestic character of the trade tax, foreign profit shares are reduced.
1.2% of the unit value of the property belonging to the business assets (
Housing construction companies ( corporation or cooperative ) and other property management companies can take advantage of the so-called extended trade tax reduction (provisions of ). The extended reduction was introduced in order not to put housing companies in a worse position than private individuals, whose income from renting and leasing is not subject to trade tax. In addition to income from the administration and use of one's own property, only one's own capital assets may be managed and used as a secondary activity, single-family houses, two-family houses or condominiums may be built and sold and residential buildings may be looked after.
Activities going beyond this lead directly to the loss of this tax advantage. For example, the construction of a photovoltaic system or a combined heat and power plant and the sale of the electricity generated would lead to the loss of the extended reduction. The supply by an energy service provider / contractor can be a way of avoiding the expiry of the extended trade tax reduction.
Determination of the measurement amount
A tax base is determined based on the business income of the company , the business tax base . This is determined by the tax office by issuing a trade tax assessment notice ( basic notice for trade tax).
- The trade income is rounded down to a full € 100 ( )
- Deduction of an allowance
- The result is the reduced trade income
- Multiplication of the reduced trade income by the tax index
Calculation of the tax base
Example 1 sole proprietorship / partnership
Gewerbeertrag 100.550 € Gewerbeertrag 100.500 € (abgerundet auf volle 100 €) − Freibetrag 24.500 € -------------------------- = Gewerbeertrag 76.000 €
76.000 € × Steuermesszahl 3,5 % = Messbetrag 2.660 €
Example 2 corporation
Gewerbeertrag 100.000 € (kein Freibetrag)
100.000 € × Steuermesszahl 3,5 % = Messbetrag 3.500 €
With the corporate tax reform of 2008, the graduated tariff for sole proprietorships and partnerships that had previously been in force was abolished.
Determination and breakdown of business tax
The rate is determined by the municipality.
Beispiel wie oben: Messbetrag × Hebesatz = Gewerbesteuer 2.660 € × 400 % = 10.640 €
The right to determine the tax rate (or any other new "economic power-related tax" to be created) is guaranteed by the constitution to the municipalities. In the city-states of Berlin and Hamburg, the municipal and state levels are identical. Trade tax is therefore set there by the tax offices, in the rest of Germany by the municipalities. This also applies to the state of Bremen, which has a city-state peculiarity as it is made up of the municipalities of Bremen and Bremerhaven and therefore has to be separated between the state and municipal levels.
Since 2004, the assessment rate according to Section 16 (4) sentence 2 GewStG has been at least 200%. With this, the legislature wants to prevent so-called commercial tax oases (for example Norderfriedrichskoog , which for a long time had a tax rate of zero). Most cities have a higher rate of assessment than the surrounding area. For example, Munich has a rate of assessment of 490%, the municipalities in the surrounding area are between 240 and 360%.
By determining the rate of assessment, the municipality has a political framework for action to settle or, if necessary, deter commercial enterprises. A low assessment rate is one of several decision criteria for the location question. Although the low assessment rate is a positive settlement criterion, it is associated with lower tax revenues per paying company for the municipality . High assessment rates can lead to a tendency to emigrate, but also result in higher tax revenues per individual company. Finding the right balance for the respective community is left to the fate of the political actors.
Does the company premises are in a plurality of communities or the establishment extends over the area of multiple communities ( "more municipal establishment"), so must the control base value to the individual communities distributed (decomposition, § ff GewStG;. Control decomposition ). Excluded from this, however, are track systems, lines (e.g. for gas, water, electrical energy) and underground mining systems. The decomposition scale is i. d. As a rule, the ratio of the wages paid to the employees there in the individual municipalities ( GewStG). In the case of a multi-communal permanent establishment, the trade tax is to be broken down according to the situation of the local conditions, taking into account the municipality burdens arising from the existence of the permanent establishment ( GewStG). This can e.g. B. Criteria such as the facilities located in the area of a municipality and / or the operating income generated there. A breakdown also takes place if a permanent establishment is relocated to another municipality during the year, so that different assessment rates may have to be applied for the corresponding time periods. In such a case, each affected municipality prepares its own trade tax assessment for the respective period. The responsible tax office issues a dismantling notice about the dismantling.
Relationships with other taxes
With the corporate tax reform 2008, the deduction of business expenses for trade tax for collection periods that end after December 31, 2007 was abolished. The trade tax is a non-deductible business expense (Section 4 (5b) EStG).
Sole proprietorships and partners in a partnership have been able to offset the trade tax against their income tax since the assessment period (VZ) 2001 ( EStG). Crediting takes place by deducting 3.8 times (up to 2007 1.8 times) the trade tax base amount from the collectively agreed income tax and is limited to the income tax that is attributable to the income from business operations . The upper limit is the trade tax actually paid. The trade tax becomes an actual burden for sole proprietorships and partnerships only from a rate of 400% (up to 2007 approx. 180%).
Financial significance of business tax
In 2014 trade tax revenues nationwide amounted to around 43.8 billion euros. For the municipalities, trade tax is the only major source of income that they can influence, alongside property tax. It is protected by the guarantee of self-government under (2) of the Basic Law . The trade tax (net) covered around 15% of the adjusted income on a national average in 2014. The municipalities have to pay part of the trade tax revenue to the federal and state governments as a trade tax apportionment. The amount of this trade tax allocation changes very frequently; after 1990 almost annually. It is significantly higher for the West German municipalities, as it enables them to share in the costs of the German Unity Fund. In 2014, the national average was 25%. Since the trade tax is directly related to local economic power, there are clear and lasting differences, especially in the West-East comparison. The per capita income adjusted for the tax rate of the municipalities in the district of Dingolfing-Landau, at 2,945 euros, is more than 24 times higher than that of the municipalities in the district of Kusel (121 euros). In the new federal states, trade tax is generally less important. To compensate for the lower tax force, they will receive special needs grants from the federal government until 2019 as part of the solidarity pact . From a fiscal point of view, the trade tax has two disadvantages for the municipalities. Since it depends directly on the local economic power, it is spatially and inter-communally concentrated. Some economically strong cities, such as B. Frankfurt am Main , Ingolstadt or Verl are dependent on it. In other cities it is practically irrelevant. The calculation method results in a high level of volatility in the volume over time. In the course of the economic crisis in 2009, the volume fell by over 20%. Subsequently, the volume rose again by 35% within five years. The strong dependency of trade tax on economic strength and its high volatility are the main reasons for the persistent and growing differences in the tax strength of the municipalities.
Volume, tax force and weighted assessment rates by federal state
state Revenue from trade tax 2010 in € million Per capita income from trade tax 2010 in € / Ew. Business tax 2010 at a rate of 100% in € / Ew. weighted average lifting rate 2010 * Germany 35,737 437.15 111.99 390% Baden-Württemberg 4,733 440.24 123.04 358% Bavaria 6,247 498.97 135.44 368% Berlin 1,224 355.26 86.65 410% Brandenburg 641 255.54 82.82 309% Bremen 314 475.63 109.52 434% Hamburg 1,710 961.11 204.49 470% Hesse 3,635 599.49 153.45 391% Mecklenburg-Western Pomerania 317 192.55 55.88 345% Lower Saxony 3,049 384.37 100.41 383% North Rhine-Westphalia 8,959 501.88 115.05 436% Rhineland-Palatinate 1,464 365.39 99.64 367% Saarland 347 340.56 83.44 408% Saxony 1,165 280.58 68.08 412% Saxony-Anhalt 554 236.20 67.57 350% Schleswig-Holstein 906 320.13 92.28 347% Thuringia 473 210.87 60.40 349%
- Source: Federal Statistical Office Series 14 Series 10.1 - 2010
Trade tax apportionment
Well-known cities and municipalities with their historically highest assessment rates
highest assessment rate
|Frankfurt am Main||515||460|
Municipalities with the historically lowest assessment rate
lowest assessment rate
July 1, 2010
According to a survey by the German Chamber of Commerce and Industry (DIHK) , the average assessment rate in the largest municipalities in 2010 was 435%. Record holders among the municipalities with more than 50,000 inhabitants are Munich, Bottrop , Duisburg and Oberhausen with 490% each; Bad Homburg vor der Höhe , Friedrichshafen , Frankfurt (Oder) , Lingen , Neu-Ulm and Waiblingen charge the lowest rate in this group with 350% each. In the case of small municipalities, around 100 municipalities or parts of municipalities only levy the minimum levy of 200%. The front runner is the Eifeldorf Dierfeld , which has been charging 900% for years. While the German cities have tended to increase their business tax assessment rate in the past few years, for example for Duisburg there is a gradual increase from 470% to 520% from 2003 to 2016, in the city of Monheim am Rhein there is a gradual decrease in the period 2010 to 2016 the trade tax assessment rate of 435% (2010) to the lowest value of a city in North Rhine-Westphalia of 250% (2018).
Discussion of business tax
The trade tax is one of the most controversial German taxes. Constitutional concerns about trade tax have been raised again and again, since liberal professions in particular are not subject to trade tax. However, these concerns were not shared by the Federal Fiscal Court and the Federal Constitutional Court . A detailed submission by the Lower Saxony Finance Court, in which it explains on 60 pages why the trade tax violates the equality principle of the Basic Law, was rejected by the Federal Constitutional Court (Az. 1 BvL 2/04).
Opposing positions of the municipalities and companies
For the municipalities, the trade tax is the most important independent tax source, but at the same time it is very cyclical , so that the municipalities cannot plan with steady income. (From 1998 to 1999 the trade tax revenue in Hamburg changed by +20%, in Kiel by -36%, in Schweinfurt by +100%, in Werdau even by +230%, in Leverkusen by -60%). It is also criticized that the municipalities cannot use the rate of assessment to attract new businesses through the reduction, but rather that, conversely, already disadvantaged communities are forced to maintain a high (deterrent) rate, and thereby lose even more businesses to already rich communities , in particular the difference in assessment rates between the big city and the surrounding area is criticized. Since the trade tax is a German peculiarity and represents an additional burden on operating income, it is criticized that the trade tax has a negative effect on international competition between locations .
The media report on companies that would no longer pay any trade tax at all: among them the (meanwhile) world's largest food company Unilever : By restructuring the group through a subsidiary ("Monda Beteiligungs GmbH"), which is located in a barn in Norderfriedrichskoog (see below), Dietstraat 13, was resident, no business tax was due for years. Up to 500 subsidiaries of international companies had their headquarters in Norderfriedrichskoog. According to Frankfurter Rundschau (January 29, 2002, cited below), profits are posted with foreign subsidiaries, while losses are located in Germany: Bayer AG paid no trade tax in 2001 , although it reported a profit of over 800 million euros. As a result, the budgets of affected cities were severely affected. This tax-saving model has now been eliminated by legislative measures.
To conclude from this that large companies generally avoid trade tax would be too general and cannot be proven by the empirical data. It happens again and again that individual companies, sometimes even for years, pay no or hardly any trade tax, but the large companies in particular make a significant contribution to the revenue from trade tax. For example, in 1995 the largest 136 companies (companies with a trade income> 100 million DM) contributed almost 18% to trade tax revenues , although they account for less than 0.015% of the taxpayers . If one adds the companies with a trade income of between 50 and 100 million DM, 0.036% of the companies paid a quarter of the total trade tax, whereas the 80% of the smaller companies only paid 6%. However, it is precisely this dependency of the municipalities on the large companies that many critics see as a danger of the municipalities being “blackmailed”; In addition, the crisis of a large company often leads to a dramatic crisis in the financial situation of the affected communities (see above the economic dependency).
The assertion that the trade tax unity in particular leads to the tax burden being reduced to zero also misses the point. In terms of trade tax, a tax group means that the individual companies in the group are treated like permanent establishments and that profits and losses can be offset against one another. Of course, this enables the tax burden to be reduced to zero, but not only the company benefits from this, but above all the municipality in which the loss-making part of the company is located, since the other municipalities also participate in the loss. The tax group ensures, above all, a more even distribution among the various local communities of a group. Since the different subsidiary companies such as operating sites to be treated, the entire commercial yield of the organ circle substantially to payroll is distributed to the individual communities. If the entire group shows a positive result, all communities receive trade tax, those with highly profitable parts of the company less than without a tax group, those with loss-making parts more. Even if the entire group of organs creates the turnaround after a loss phase, individual municipalities are not disadvantaged for a very long time by existing loss carry-forwards compared to the municipalities with the profitable parts of the company, but they receive tax revenue again more quickly .
Since the trade tax is a considerable burden for companies, but at the same time is of great importance for the communities, reforms in this area have often met with resistance because of the different interests, but the trade tax has been under discussion for decades.
Trade tax in an international comparison
- Austria abolished its trade tax in 1994, but has since levied a municipal tax of 3% on wages.
- Switzerland does not levy any trade tax. Exceptions are regulated by the cantons , for example the municipalities in the canton of Geneva levy a trade tax that is comparable to that in Germany.
- In Luxembourg, a tax similar to the German trade tax (impôt commercial) is levied, for which the municipalities also have a right of assessment .
- France levies local taxes ( contribution économique territoriale (CET)) , which tax companies' added value and real estate; these replace the income-independent taxe professional that was applicable until 2010 .
- Spain levies the impuesto sobre actividades economicas , which is a communal tax and which is also independent of income, although companies whose net sales do not exceed € 1 million are exempt from the tax [artículo 82 del Texto refundido de la Ley Reguladora de las Haciendas Locales].
- As a regional tax , Italy levies the imposta regional sulle attività produttive , with which the added value of companies is taxed. The municipalities are given the opportunity to adjust the tax rate of 4.25% up or down by one percentage point. It was considered very likely that this tax, called IRAP, contradicted the 6th EC Directive, according to which no similar taxes may be levied in addition to the harmonized VAT. In his Opinion, Advocate General Jacobs pleaded for a ban on the tax, but because of the expected enormous tax reclaims (estimated at 120 billion euros) if the judgment had an ex tunc effect, as is customary for judgments of the ECJ , he also advocates a restriction the effect of the judgment at some point in the future. Ultimately, however, the ECJ decided differently - the IRAP was compliant with European law.
- Hungary, like Italy (see above), levies a tax similar to trade tax. In the course of the pending proceedings against Italy at the ECJ, this tax has increasingly come into public discussion. According to the above However, in a decision of the ECJ, the Hungarian government announced that it would continue to adhere to this type of tax.
- In the United States, many local governments impose a non-profit tax on the fixed assets of commercial operations (commercial property tax) . As a rule, national law determines a measurement figure and the local authorities determine certain assessment rates, with overlapping local authorities (e.g. rural district, municipality, sewage district and school district) demanding their assessment rates side by side.
If one considered the burden of 25% corporation tax (including solidarity surcharge 26.375%) up to 2007 , Germany would have been in the middle in an international comparison. Due to the commercial control, leading to a burden of 15 to 20% - depending on the multiplier - but results, Germany was corporations at the top of the tax burden of company profits. On January 1, 2008, a corporate tax reform came into force in which corporation tax was reduced to 15%, putting Germany back in the middle of the European field in nominal terms. See also corporate taxation .
There have always been efforts to reform the trade tax or to abolish it entirely. In 2002, given the financial situation of the municipalities, the federal government set up a commission to reform municipal taxes, whose “Municipal Taxes” working group examined, among other things, the replacement of trade tax with a proportional surcharge on other taxes. In 2003 the federal government passed the draft law to reform the trade tax with a further development of the trade tax to a municipal business tax , including the liberal professions . The draft failed due to resistance from the Federal Council.
In 2010 the Federal Cabinet set up a municipal finance commission with the mandate to work out proposals for the reorganization of municipal finance. In particular, it should also examine “the income-neutral replacement of trade tax with a higher proportion of sales tax and a municipal surcharge on income and corporation tax with its own assessment rate”. After 15 months of negotiations, the commission did not issue a recommendation for a trade tax reform in its final meeting on June 15, 2011.
While the municipalities are demanding that trade tax be maintained or strengthened by expanding non-income-related components or expanding the group of taxpayers to include freelancers and landlords, companies are demanding the abolition of trade tax . As an alternative, a right of the municipalities to assess income tax and corporation tax or an increase in the participation in sales tax is proposed. But there are also other proposals, such as the introduction of a value added tax .
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