The Supreme Tax Court has held that a downstream, but not an upstream, merger leads to new assets for the surviving entity that can imperil its loss carry forward.
In its decision of 12 May 2016 the Supreme Tax Court held that -in the case of a two-tier partnership structure- the trade tax loss carry-forward of the lower-tier partnership is fully eliminated, if the upper-tier partnership, which holds a 100% -interest in the income and assets of the lower-tier partnership, is merged down-stream and thus ceases to exist. Referring to previous case law, the Court’s reasoning was that the upper-tier partnership, as co-entrepreneur of the lower-tier partnership, was also the holder of the partnership’s trade tax loss-relief.
The Supreme Tax Court has held that unused loss relief may only pass to transferee under the Reconstructions Tax Act up to December 12, 2006 if the loss making business was still held by the transferor on date of transfer.
The Federal Ministry of Finance has sent the draft of a Ministry circular on the application of Section 8d of the Corporation Tax Act (CTA) – continuance-bound loss carry-forward after loss forfeiture - to the professional associations for comment.
The Supreme Tax Court has held that an upstream merger leads to new assets in the accounts of the parent (surviving entity) and thus to forfeiture of that company’s remaining loss carry-forward if the new assets are substantial.
The ECJ overturned an earlier judgment of the European General Court and held that the German tax legislation concerning the possibility of a loss-carry forward to future tax years despite a harmful share acquisition in cases of a rescue plan to save the company from insolvency – known as the salvage clause - is not illegitimate state aid.
The Supreme Tax Court has allowed a manoeuvre effectively avoiding forfeiture of a loss carry-forward on change of shareholder through the sale of a worthless shareholder loan to a new shareholder followed by recovery from the injection of new capital.
Under certain conditions, changes in shareholders and the admission of new investors will in future be possible without giving rise to a forfeiture of losses carried-forward. On 23 December 2016 the Act for the Further Development of Tax Loss Utilisation for Corporations was published after having been adopted by the German Parliament (Bundestag and Bundesrat) on 20 December 2016.
The Cologne Tax Court held in its decision (10 V 1706/18) published on 15 January 2020, that the wording of Section 8d (1) Sentence 5 of the Act did not contain a cut-off period according to which the application under Section 8d (1) CTA for continuance-bound loss carry-forwards must be filed in the first tax return - and only there.
The Supreme Tax Court has held that a tax office cannot be required to issue a provisional assessment restricting the immediate deduction of the loss brought forward, merely because of the possibility that the remaining loss to be carried forward might be invalidated by a share transaction abroad at some future point in time.
The finance ministry has instructed tax offices to allow payment suspension requests on assessments to “minimum tax” where the future offset of the loss to be carried forward is excluded by law.
The Supreme Tax Court has referred to the Constitutional Court on whether a confiscatory effect of the loss offset deferral provisions can be a breach of the equal treatment requirement of the constitution.
On 30 November 2017, the Federal Ministry of Finance published the final version of its circular on the application of the loss forfeiture rules according to Section 8c of the Corporation Tax Act (CTA), including comments on the Hidden Reserve Clause and the Group Clause. This circular replaces the circular on this subject from 4 July 2008.
The German Constitutional Court held that the rules for curtailment of loss relief on change of shareholders to be in breach of the formal provisions of the constitution under the principle of equal treatment insofar as changes of more than 25% and up to 50% of the shares in a company within a period of five years are concerned.
The ECJ has held that a Finnish exemption from a loss forfeiture provision on the change of shareholders would be state aid if the authorities may apply it with discretion and would require Commission approval if the details of the scheme have substantially changed since Finland’s accession in 1995.
The Supreme Tax Court has held that a foreign PE loss that for all practical purposes cannot be offset in its country of origin can be offset in German as the country of the head office.
The ECJ has held that no restriction on the freedom of capital movement arises from relieving domestic double taxation on dividend income under an exact imputation system, whilst foreign double taxation is relieved by exempting the foreign income.
The advocate general on an ECJ case on special case exemption from a loss curtailment provision has suggested the court hold the exemption rule to be of pre-accession provenance and thus not to be disapplied as unauthorised state aid unless and until the Commission has come to that conclusion on the basis of a properly completed formal proceeding.
According to a ruling of the Supreme Tax Court published on 10 March 2022, where a financial company acquires a convertible bond with the intention of achieving a short-term proprietary trading profit and sells the shares received as a result of the conversion, this meets the conditions of Section 8b (7) sentence 2 Corporation Tax Act.
