Following a Supreme Tax Court case, the finance ministry has amended the VAT Implementation Decree to clarify that investment consultancy to investment trusts is VAT-free as the administration of fund assets if linked to a concrete recommendation to buy or sell based on precise knowledge of the fund’s portfolio and investment objectives and restrictions.
The ECJ has held that investment consultancy services to an investment management company operating a retail investment trust fund are free of VAT as investment fund management services.
The Supreme Tax Court has laid a preliminary question before the ECJ on whether the provision setting the taxable income derived from an investment in a non-compliant foreign fund at 90% of the increase in the unit redemption price during the year is to be disapplied as a restriction on the free movement of capital going beyond what is necessary to combat tax evasion.
The finance ministry has extended the period to the first accounting years ending after July 20, 2016 in which foreign investment trusts doing business in Germany on December 22, 2008, but that no longer meet the formal German registration requirements continue to be treated as though they were still recognised, provided they continue to publish their accounts in the prescribed form.
In a most recent decision, the Supreme Tax Court held that a foreign investment fund who received dividends from domestic stock corporations which were subject to tax withholding (capital gains tax) under the 2004 Investment Tax Act is in general entitled to a refund of this tax under the principles of EU law.
