International Tax Law (Germany)
The international tax law in Germany as a special field of tax law deals with the problems of cross-border issues that are important for the taxation of natural persons, partnerships and corporations . In these circumstances it would without a legal provision to a double taxation of income come when the respective states would exercise their right to submit the income of each tax law.
This problem occurs mainly in the following situations:
- a taxpayer is subject to unlimited tax liability in two countries due to his domicile or habitual residence or
- the person / company resident in one state earns income in one or more other states.
This raises the question of which state is allowed to tax this income.
International tax law has not received an independent coherent codification, but can be found in various laws, in particular the Income Tax Act, Corporation Tax Act, External Tax Act, Tax Code, Investment Tax Act, and in the double taxation agreements .
Double taxation agreement (DTA)
In order to be able to determine which of the two or more states concerned does not have the right to tax , so-called double taxation agreements are used, which are negotiated between the respective states. The agreements of the developed countries (industrialized countries) are basically based on the OECD model agreement, with the individual regulations being negotiated on a state-specific basis. DTAs never establish a right to tax, rather they merely limit it. The basics of the respective national taxation can therefore always and exclusively be found in the national tax laws.
In principle, it is possible and also common for certain national tax regulations to conflict with a DTA, i. H. a matter is taxed that should not be taxed according to the relevant DTA. This so-called treaty-overriding is a violation of the DTA, but cannot be asserted by the national taxpayer against his tax office, as this was not a contracting party, this was only the states involved.
The Federal Fiscal Court is convinced of the unconstitutionality of these treaty-overrides ; He has therefore recently suspended the proceedings in two resolutions and submitted them to the Federal Constitutional Court for constitutional review in accordance with Art. 100 of the Basic Law .
In principle, the taxation substrate is divided between the participating countries through a DTA. It depends on which country has the stronger attribution reference.
Income from real estate assets (rent and capital gains) is regularly taxed in the country in which it is located and exempted from taxation in the other country (country of residence of the owner), Art. 6 and 13 Paragraph 1 of the OECD Model Convention. The same applies to so-called permanent establishments , i.e. commercial operations . In the context of DBA, the partnership is basically treated like a permanent establishment. Current profits and capital gains from permanent establishments are taxed exclusively in the state in which the permanent establishment is located, Art. 7 and 13 Paragraph 2 of the OECD Model Convention. In the case of the sale of shares in a corporation, however, only the country of residence of the shareholder is taxed , Article 13 (4) of the OECD Model Convention. In the case of dividends and interest payments, on the other hand, a withholding tax withholding is typically withheld in the recipient country, i.e. H. the state of the dividend or interest source levies a withholding tax, the amount of which is limited in the DTA. For its part, the recipient state also taxes the dividend or interest payment, but grants a limited credit for the taxes paid abroad.
Negative foreign income according to Section 2a EStG
This regulation of the EStG applies if a person or company resident in Germany receives negative income from a third country (countries that are neither EU nor EEA countries). In this case, the negative income, which, if taken into account, would lead to a lower tax, according to § 2a EStG not taken into account for taxation. However, the negative income can have an impact if certain positive income is also drawn. If the negative and positive income meet the principle of "species and national equality", they can be offset against each other and the positive income does not affect the amount of the negative income. Identity of species and states means that the income must be drawn from the same state and from the same type of income so that it can be offset.
However, the principle of equality of species and states does not apply to negative income from commercial operations in accordance with Section 2a (1) No. 2 EStG in conjunction with Section 2a (2) EStG. This rule states that species and state equality does not apply if the taxpayer proves that the income comes from an "active" permanent establishment. An active business establishment in this sense includes all sources of income that exclusively or almost exclusively focus on the manufacture or delivery of goods, the extraction of mineral resources and the production of commercial services. If this is the case, the restriction on the deduction of negative income does not apply and can therefore affect the determination of the tax burden.
However, if the income is from a "passive" permanent establishment in accordance with § 2a (2) EStG, the restriction by the principle of species and state equality applies. Passive permanent establishments are those that deal with the trade in weapons and the operation of holiday resorts or the rental or leasing of economic goods, including the transfer of rights, plans, samples, procedures, experience and knowledge. In this case, the negative income cannot be offset, but can only be offset against profits if it complies with the principle of species and national equality.
literature
- Tobias Plenk: International Tax Law. Verlag Neue Wirtschafts-Briefe GmbH & Co., Herne 2009, ISBN 978-3-482-59351-2 .
- European business and tax law (EWS), specialist media law and business
- Internationale Wirtschaftsbriefe (IWB), nwb Verlag
- European journal for commercial law (EuZW), Verlag CH Beck
Individual evidence
- ^ A b Christoph Juhn: International Tax Law. August 1, 2017. Retrieved August 12, 2017 .
- ↑ http://www.oecd.org/de/modeltaxconvention
- ↑ Press release of the Federal Fiscal Court on the decision of January 10, 2012
- ↑ Press release of the Federal Fiscal Court on the decision of December 11, 2013
- ↑ European Economic and Tax Law (EWS). Retrieved May 10, 2018 .
- ↑ International tax law, double taxation agreements, transfer pricing. With a free trial! Accessed May 10, 2018 .
- ↑ Publishing CHBECK oHG: Current issue - Right-tax economy - Publisher CHBECK. Retrieved May 10, 2018 .