Media fund
Media funds are closed-end funds used to finance film and television productions . The investor contributes to the financing with his investment and participates in the profit .
The fund consists of a community of investors who use their capital to either produce films and / or TV productions ( producer funds ) or trade in film licenses ( leasing or buyer funds ). The most popular legal form for a media fund is the GmbH & Co. KG . The GmbH is the personally liable partner ; it does not need to have a stake in the share capital of the fund and its directors need not be from the film industry . The individual investors are limited partners .
In the past, a major motive for this type of investment was the so-called loss allocation for the investor. In the first year of the investment, tax losses of up to 100% of the capital contribution were common. This possibility of tax savings through loss carryforward was eliminated at the end of 2005 (see § 15b EStG ), so that an investment in such "tax saving funds" became less interesting.
history
The first wave of media funds already existed in the Federal Republic of Germany at the end of the 1970s.
The real boom in media funds began in Germany in 2000 and thus coincided with the collapse of the New Economy . At that time, Germany was the only country in the world that took into account a total loss in the first year for tax purposes when investing in films via media funds without so-called local spend (i.e. the obligation to spend a percentage in the home country of the investors). With a lot of money, but little knowledge of film production and screenplay evaluation, the majority of the fund managers bought into Hollywood productions that had been in the drawers there for some time (examples: Battlefield Earth , Driven ). Within a short time the term “ Stupid German Money ” made the rounds in Los Angeles .
From 2004 onwards, some fund companies succeeded in generating profits from their projects (examples: The WiXXer , men like us , 7 dwarfs - men alone in the forest , Terminator 3 , Alexander , Cubans kiss better ). However, the mood against the “tax evasion practice” had already changed: the administration specified the tax treatment of media funds and made it more difficult to make losses from media funds. As a result, the attractiveness of the film and television funds has steadily decreased.
According to this media decree, the fund initiator (bank or investment consultancy) was not allowed to relieve the investors of the co-entrepreneur risk and the co-entrepreneur initiative. The tax break only applies if the fund has the quality of a "film producer". The BGH had already defined what a “film manufacturer” is in a key decision. To do this, he focused on the economic responsibility and organizational work required to bring a film to an end as a finished product. It is precisely not a matter of artistic creativity; According to this key decision, Rainer Werner Fassbinder was not a film maker.
In order for the fund - often organized in the form of a GmbH & Co. KG - to be a film manufacturer, investors must have film expertise and have real influence on the film production. As a rule, the investors' meeting meets once a year to determine the guidelines for film policy. It is not required that every individual investor has this film expertise, but the community of investors can be represented for this purpose by a committee (e.g. an advisory board) that meets several times a year. This advisory board should include people from the film and / or TV industry. If, on the other hand, the advisory board is made up of people who are attributable to the fund initiator or who are close to him, this indicates that he is inclined to relieve the investor of the risk, which would torpedo his tax recognition of losses according to the specifications of the media decree.
If the fund initiator has a majority stake in the production company, this does not per se constitute a violation of the media decree if its explicit requirements are met. The fund is not externally controlled due to the sheer ownership structure.
The tax recognition of losses has been problematic since 2001 (first version of the media decree) when it was a matter of pure loss allocation companies with no intention to make a profit . This aspect was tightened by the legislation at the end of 2005.
Amendment 2005
In the meeting of the Federal Cabinet on November 24, 2005, the end of the possibility of offsetting losses in so-called “tax saving funds” was decided. Losses from these should only be offset against positive income from comparable funds, but no longer with positive income from other types of income. This restriction made investing in a “tax saving fund” uninteresting for most investors. "Tax saving funds" are funds that were intended to save tax from the outset. Such funds were often advertised accordingly by the fund initiator. In addition to media funds, it is primarily green electricity and ship funds that are affected . A corresponding draft law was introduced jointly by the SPD parliamentary group and the CDU / CSU parliamentary group and passed by the Bundestag on December 15, 2005 in an urgent procedure (confirmed by the Bundesrat on December 21, 2005). The law came into effect retrospectively from November 11, 2005, so that investors who subscribed to a participation after November 11, 2005 can no longer benefit from the corresponding tax advantages.
The media derived the “end for media funds” from this. But the legislative initiative contradicts a statement in the coalition agreement between the CDU / CSU and the SPD of November 11, 2005, in which under Section 2.6 - "Promotion of the German film industry" - it was demanded that conditions should be created by July 1, 2006 to improve private investment in film productions in Germany and to align with the practice of other EU countries.
Media fund with leasing structure
Between 1998 and 2005, media funds were mainly sold that had a permanent licensee for the film. This license agreement regularly has fixed terms and at the end a further exploitation agreement, for example a right to tender or a purchase option. The license payments are secured by banks that have assumed the debt of the licensees as an independent obligation. In spring 2009, the Bavarian tax authorities announced that they would subject these funds to a new tax assessment. The claim against the debt-taking bank should be activated in the balance sheet of the fund company, which means that the tax loss allocations for the investment period are neutralized. About 50,000 investors are affected, who are now supposed to repay their tax savings.
See also
Individual evidence
- ↑ a b c Law on the restriction of loss offsetting in connection with tax deferral models ( memento of the original from February 1, 2012 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. . On: bundesfinanzministerium.de, December 30, 2005 ( PDF ).
- ↑ Nothing works anymore. West German tax savers invested hundreds of millions of marks in mostly questionable film projects. In: Der Spiegel , November 6, 1978.
- ↑ See the so-called media decree of February 23, 2001, supplemented by another letter from the Federal Ministry of Finance of August 5, 2003: Income tax treatment of film and television funds ( Memento of the original of October 25, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and not yet tested. Please check the original and archive link according to the instructions and then remove this notice. .
- ↑ BGHZ 120, 60 ff.
- ^ Draft of a law on the restriction of loss offsetting in connection with tax deferral models . On: bundestag.de, November 29, 2005 (PDF; 129 kB).
- ^ Reiner Reichel: media fund: film tear for fund investors . In: wiwo.de, April 1, 2009.
- ↑ Susanne Osadnik: Film fund investors should pay voluntarily ( Memento from September 24, 2009 in the Internet Archive ). In: ftd.de, September 22, 2009, accessed on February 12, 2012.
