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Tax & Legal

Tax & Legal

Real estate transfer tax: cancellation of a real estate transfer agreement


In its decision of 4 November 2009 (II B 48/19), published on 16 January 2020, the Supreme Tax Court held that Section 16(1) No. 2 Real Estate Transfer Act (“RETT Act”) did not provide for a time limit for the cancellation of purchase transactions. The special limitation period set out in Section 16 (4) RETT related to the cancellation of the agreement itself and not to the date on which an application was made to cancel the RETT assessment. Furthermore, in the circumstances, the cancellation was not a “retroactive event” within the meaning of Section 175 (1) Sentence 1 No. 2 of the General Tax Code. Continue reading

Outsourcing finanancial services – VAT exemption


Services are provided to a bank operating automated teller machines (ATMs) which consist of setting up and maintaining these machines, replenishing them with cash and equipping them with hardware and software for reading the cash card data, forwarding authorisation requests for cash withdrawals to the bank which issued the cash card used, making the desired cash withdrawal and registering withdrawal transactions are not tax exempt supplies with the meaning of Section 4 No. 8 letter d of the VAT Act. This was the finding of the Supreme Tax Court on 13 November 2019, published on 19 December 2019. Continue reading

Referral to European Court of Justice: VAT exemption for the development and brokerage of insurance products


Does an insurance broker, who makes- in addition to his brokerage activities -a brokered insurance product available to an insurance company, provide VAT-exempt services? The Supreme Tax Court considered this doubtful and decided on 5 September 2019 ( V R 58/17), to refer the question to the Court of Justice of the European Union (ECJ) for a preliminary ruling.  Continue reading

Proof of VAT-exempt intra-Community supplies


For the purposes of establishing whether an VAT-exempt intra-Community supply had been made, where other evidence exists establishing that the motor vehicles had been sent to their destination in the other EU country, the assumption of the absence of documentary evidence could not contradict such other evidence.

The proof of the customer’s entrepreneurial status resulting from the VAT ID number cannot be refuted by the mere assumption of a letterbox address. Continue reading

Inheritance Tax: spousal residence exemption


According to the Supreme Tax Court in its judgment of 11 July 2019 – (II R 38/16), published on 28 November 2019, the inheritance tax exemption on the inheritance a family home by the surviving spouse or civil partner will not apply retroactively where the surviving spouse/partner transfers ownership of the family home to a third party within ten years of acquisition. This will also be the case where the surviving spouse/partner continues to use the home for residential purposes under the terms of a lifetime interest. Continue reading

CFC rules considered to be in line with EU law


Following a ruling by the European Court of Justice (ECJ) earlier this year, the Supreme Tax Court held in its decision of 31 October 2019 that the incorporation into the tax base of controlled company income from invested capital from an intermediary company domiciled in Switzerland in the financial year 2006 may restrict the free movement of capital, but it is justified through compelling reasons of public interest and does not therefore contravene EU law. Continue reading

Restrictions to the “tainting effect” of trading partnership income for trade tax purposes


For income tax purposes, income of a partnership from leasing and letting or from capital assets is to be reclassified as trading income where the partnership also receives a negligible amount of income from a participation in a trading partnership; however, such “tainted” income is not subject to trade tax. This was decided by the Supreme Tax Court in its ruling of 6 June 2019, published on 1 August 2019. Continue reading

Locker can constitute a fixed place of business for double tax treaty purposes


The Supreme Tax Court refused to overturn the tax court’s decision to refuse leave to appeal, agreeing with the lower court that a locker can constitute a fixed place of business within the meaning of Article XI Paragraph 1 of the German/British double tax treaty. Continue reading

Sky subscription for German football league games may constitute income-generating costs


The Supreme Tax Court has ruled the expenses of a football trainer for a Sky subscription to German football league (“Bundes League”) games may be treated as tax-deductible expenses from self-employed income. The appellant was a full-time trainer of goal keepers working in licensed football. Continue reading