GERMANY: HOLDING COMPANY FISCAL REGIME

• Capital Gains Tax on Sale of Shares: Profits realized by the holding company on the sale of shares in the subsidiary must either be exempt from or subject to a low rate of capital gains tax in the holding company's jurisdiction.

• Outgoing Dividends: Outgoing dividends paid by the holding company to the ultimate parent corporation must either be exempt from or subject to low withholding tax rates in the holding company's jurisdiction.

By these criteria Germany is a relatively attractive jurisdiction in which to set up a holding company although not the most attractive.

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Withholding Taxes on Incoming Dividends

As a member of the EU Germany is governed by the provisions of the EU's Parent-Subsidiary directive, whose effect is that where a German holding company controls at least 15% (10% from 2009) of the shares of an EU subsidiary for a minimum period of 12 months any dividends remitted by the EU subsidiary to the German holding company are free of withholding taxes.

Where the provisions of this directive do not apply (or where anti-avoidance provisions are in place) German holding companies can rely on an extensive network of double taxation treaties the effect of which is to obtain a reduction in withholding tax rates on dividends remitted to Germany from the subsidiary jurisdiction.

Germany has more than 90 double taxation treaties in place. The greater a country's network of double taxation treaties the greater its leverage to reduce withholding taxes on incoming dividends. An elaborate network of double taxation treaties is thus a key factor in the ability of a territory to develop as an attractive holding company jurisdiction.

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Corporate Income Tax on Dividend Income Received

Until 2002, dividend income received by a German holding company from a foreign subsidiary was treated in one of 3 ways:

• Exemption Method: The dividends could be completely exempted from an assessment to corporate income tax in Germany. Exemption is granted in some (but not all) of the double taxation treaties signed by Germany. (Other double taxation treaties only give a tax credit).

• Credit Method: German corporate income tax was paid on the dividend income but a credit for the full value of the tax paid in the foreign jurisdiction is granted and set off against the German tax liability. Thus if the gross value of dividends remitted was 1m DEM on which corporate income tax of 300,000 DEM had been deducted in the foreign jurisdiction and on which the liability in Germany would have been 350,000 DEM then the tax liability in Germany was 50,000 DEM. If the tax paid in the foreign jurisdiction was higher than that payable in Germany no further corporate income tax was payable in Germany. The credit method applies to:
  
  • Double Taxation Treaties: Some countries with whom Germany has signed a double taxation treaty. (Other double taxation treaty countries grant exemption from corporate income tax on dividend income received).
    
  • Domestic Law: Countries for whom German domestic law makes special provision whereby foreign taxes already paid on foreign dividend income are credited against any German corporate income tax liability that is assessed on the same. Not all countries are covered by this domestic law.
    
  • International Affiliation Privilege Rules: Even if there is neither a double taxation treaty in place nor a domestic arrangement, the "international affiliate privilege" rules may grant a tax credit in Germany on corporate income tax paid in a foreign jurisdiction on dividend income remitted to and taxable in Germany. In order to fall within the international affiliation privilege rules the German holding company must meet the following 3 criteria:

• 10% Shareholding: The German corporation must hold a minimum of 10% of the shares in the foreign subsidiary
  
• 12 months period: The shareholding must have been held by the German company for a minimum period of 12 months prior to the distribution of dividend.
  
• Active Income: The dividends remitted by the foreign subsidiary must relate to active trading activities and not be "passive income" (e.g. profits relating to bank interest on a deposit of funds).

Deduction Method: Where neither the exemption nor credit methods applied the corporate income tax paid on the dividends remitted was deducted from taxable income prior to an assessment to German corporate income tax. Thus if the gross value of dividends remitted was 1m DEM on which corporate income tax of 300,000 DEM has been deducted in the foreign jurisdiction and on which the liability in Germany would have been a corporate income tax rate of 35% then the tax liability was 35% on 650,000 DEM. Clearly exemption was the most favorable fiscal treatment with deduction being the least favorable.

New Rules From 2002

Under the regime introduced in 2002, dividends received by German parent companies from their German and foreign subsidiaries were exempt from tax. For dividends received from German subsidiaries, the exemption applied initially to dividends paid in 2002 if the dividends were based on ordinary shareholder resolutions for prior fiscal years. For dividends received from domestic subsidiaries that have adopted a fiscal year deviating from the calendar year, the exemption applied initially to dividends that were declared in 2002 after the end of fiscal year 2002. For dividends received from foreign companies, the exemption applied initially to dividends received in 2001. However, if the fiscal year deviates from the calendar year, the exemption applied initially to dividends received in the fiscal year ending in 2002. For dividends not based on ordinary shareholder resolutions, such as constructive dividends and interim dividends, the tax exemption applied initially to dividends received in 2001.

However, under the regime introduced in 2002, when a shareholding amounts to less than 10%, dividends paid to the holding company will be charged at the appropriate rate of municipal tax (“Gewerbesteuer”) ranging between 7% to 17% depending on the community where the company is registered. Some advisers consider that this tax is contrary to Federal law.

In March 2005 the then German Finance Minister Hans Eichel said that he was working on a new plan to simplify Germany's complex corporate taxation structure to bring about a single income tax rate for businesses.

At the time, large companies in Germany paid a basic 25% corporate tax. However, this was on top of local company taxes, charged at an average of 13-14%, making a nominal corporate tax rate of about 38% - one of the highest in the world.

Meanwhile, sole proprietorships and partnerships are taxed on a different legal basis, with the profits of these entities attributed to the individual partners who pay tax through the personal taxation system at progressive rates of up to 42% (at the time of writing).

In November 2006, Germany's coalition government arrived at an agreement over key company tax reforms which reduced the overall corporate tax burden. The reforms cut the overall corporate tax burden to a little under 30% from the current level of almost 40%.

This has been brought about by a cut in the 25% headline corporate tax rate, paid by large companies, to 15% as of January 2008. Companies will continue to pay corporate tax (trade tax) at the local level, although this is no longer deductible under the new legislation.

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Capital Gains Tax on the Sale of Shares

If a German corporation or branch holds a 10% or greater interest in a foreign subsidiary, capital gains derived from the sale of shares in the foreign corporation are exempt from corporate income tax and trade income tax. However, to the extent of previous write-offs, normal income taxes are levied on these sales. Losses incurred on sales, liquidations and capital reductions of such subsidiaries are not deductible.

In Germany the capital gains of a corporation are treated and taxed as corporate income. Only German "holding" companies are exempted from corporate income tax in Germany on the profitable sale of shares in a foreign subsidiary and even then the holding company must meet 2 criteria if the exemption is to apply. Those criteria are as follows:

i) International Affiliate Privilege Rules: The German company must be a holding company within the meaning of the "international affiliate privilege rules" in that:

• The German company holds at least 10% of the foreign subsidiary's shares

• The German company holds the foreign subsidiary's shares for a minimum period of 12 months preceding the sale of the shares.

• The foreign subsidiary is an active company in that the income it remits relates to real economic activity as opposed to being passive income (e.g. interest on a bank loan).

ii) Reduced Corporate Income Tax Liability: The German company is exempted from or pays reduced corporate income tax on dividends received from the foreign subsidiary either because:

• The foreign subsidiary is located in a country with which Germany has a double tax treaty the effect of which is that any dividends remitted from the foreign subsidiary to the German holding company are exempted from (or sometimes credited to) corporate income tax in Germany.

• The foreign subsidiary is located in a country to which German national law allows a credit against German corporate income tax for foreign taxes paid on any dividends remitted to Germany. Only certain countries are entitled to this credit under German national law.

(N.B. Capital losses on the sale of foreign shareholdings are not tax deductible).

New Rules From 2002

Capital derived from sales of shares of resident and nonresident companies after December 31, 2001 are exempt from tax if, at the date of sale, the shares have been held for at least one year. If the company whose shares are sold has adopted a fiscal year other than the calendar year, the exemption applies initially to sales after the end of the 2002 fiscal year. If the shares were acquired through a tax-free contribution of a business or division of a business in exchange for shares, a seven-year holding period is required for the exemption. For capital gains derived from sales of shares that were acquired in a tax-free share-for-share exchange, the exemption does not apply if the shares were acquired in a tax-free contribution of a business or division of a business and if the seven-year holding period has not expired.

Expenses that have a direct economic connection with an exempt capital gain are not deductible.

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Withholding Taxes on Outgoing Dividends

There is a standard rate of 21.1% (20% plus the 'solidarity' surcharge) for withholding taxes on outgoing dividends. This amount can only be reduced in 2 circumstances: (N.B. The standard rate of withholding tax is due to rise to 25%, or 26.375% including the solidarity surcharge, from 2009).

• Where the parent corporation to which the dividends are remitted by the German holding company is resident in another EU territory and holds at least 15% (10% from 2009) of the German holding company's shares for a minimum period of 12 months prior to the dividend distribution. (N.B. Germany has anti-avoidance provisions aimed at non- EU parties attempting to benefit from the terms of the directive).

• Where the ultimate parent corporation is located in a jurisdiction with whom Germany has a double taxation treaty then the rate is generally reduced from the standard rate to a reduced rate of between 5-15%. Germany has over 76 double taxation treaties.

One feature of the German tax system is that taxes are deducted first and re-claimed subsequently after the issue of an exemption notice which the taxpayer must apply for.

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German v Danish Holding Companies

Since Denmark is currently the benchmark holding company jurisdiction which other holding company jurisdictions seek to emulate a comparative assessment of the two jurisdictions is a useful exercise.

As members of the EU, and with approximately equal numbers of double tax treaties, the two countries are equivalent in terms of the imposition of withholding taxes by the jurisdiction from which a dividend emanates.

Corporate Income Tax on Incoming Dividends: In Denmark dividend income received by a Danish holding company is exempted from corporate income tax irrespective of the existence of any double taxation treaties & domestic arrangements and irrespective of the jurisdiction in which the foreign subsidiary is located, provided that the Danish holding company meets the "participation exemption criteria" in that for a minimum period of 12 months prior to the dividend distribution it holds at least 20% of the shares of the foreign subsidiary (which subsidiary must not be deemed a "financial company"). After the German 2002 reforms, the German regime is not noticeably inferior to the Danish regime.

(N.B. The EU Parent Subsidiary Directive exempts dividends paid by a subsidiary company to its parent company provided both companies are located within the EU and the holding company has held a minimum of 15% of the subsidiary's shares for at least twelve months (10% from 2009).

Capital Gains on the Sale of Shares: A Danish holding company is exempt from any capital gains on the profitable sale of shares in a foreign subsidiary provided that it has held at least 20% of the foreign subsidiary shares for a minimum period of 3 years prior to the disposal and the foreign subsidiary is not a financial company. There is no requirement that the foreign subsidiary jurisdiction have a double taxation treaty with Germany or that it be subject to a favorable arrangement under German domestic law.

After the German 2002 reforms, the German regime is not noticeably inferior to the Danish regime.

Withholding Taxes on Outgoing Dividends: In Denmark no withholding taxes are deducted from outgoing dividends irrespective of the existence or non existence of a double taxation treaty and provided the ultimate foreign parent corporation holds at least 20% of the shares in the Danish holding company for a minimum period of 12 months. This makes the Danish holding company a considerably more flexible entity than its German counterpart.

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