Corporate Tax News Issue 57 - January 2021

Withholding Tax Relief Modernisation

Procedure of relief from capital gains tax

The Federal Ministry of Finance (BMF) has outlined the planned changes in the process of withholding tax relief in the ministerial draft published on 20 November 2020. The goal of the Withholding Tax Relief Modernisation Act is to simplify and accelerate the process of relief from withholding tax, as this procedure is very complex and lengthy. Moreover, it aims to counteract abusive arrangements to obtain tax benefits. In this article, we summarise the contents of the draft, which are important for internationally engaged groups of companies, and outline some suggested action points.

The new sec. 50c ITA-D: Substantive changes in comparison to sec. 50d ITA (current version)

The rules of procedure of the current sec. 50d (1) and (2) Income Tax Act (ITA), which affect the process of relief from withholding tax and the tax deduction according to sec. 50a ITA, on the basis of sec. 43b and 50g ITA (EU Parent Subsidiary Directive/EU Interest and License Directive) or a double taxation treaty (DTT), are transferred into sec. 50c ITA-D (draft). According to the draft, in 2024 there will be a fully digitalised application for exemption and refund from the withholding tax process, electronic processing of those applications on behalf of the Federal Central Tax Office, and electronic retrieval of notices.

Additionally, two aspects are regulated, which enable a person paying capital gains tax or remuneration to avoid withholding or paying capital gains tax or the tax under sec. 50a ITA. Firstly, this is the case when the payer has an exemption certificate issued by the Federal Central Tax Office. Secondly, the draft sets a minimum limit for income according to sec. 50a (1) No. 3 ITA (licensing or comparable cases) of EUR 5,000 per calendar year. If the remuneration paid by the payer to the same person with limited tax liability does not exceed this limit, the PAYER may refrain from withholding and paying the tax. This is limited to cases of relief based on a DTT. The obligation to file a tax return remains, in both cases.

Another significant change is that the exemption certificates will not be valid retroactively from the date of application to the Federal Central Tax Office. Instead, the certificate will be valid from the date of issue. However, the previously required minimum validity of one year no longer applies, allowing taxpayers to apply for a certificate even if the requirements are only met for a short period of time.

Finally, it should be noted that the submission of a certificate pursuant to sec. 45a (2) ITA is a prerequisite for the purpose of the reimbursement of capital gains tax. According to the draft, it will not be possible for the Federal Central Tax Office to waive this requirement.

Sec. 50d (3) ITA-D: Revision of the national anti-treaty shopping rule

After the European Court of Justice ruled in its verdict dated 20 December 2017 that sec. 50d (3) ITA in the former version violated Article 49 of the Treaty on the Functioning of the European Union (freedom of establishment), and the current version of the provision at least partially restricts the freedom of establishment according to the verdict of the European Court of Justice dated June 14th of 2018, the draft now attempts to implement these judgements into national tax law. In addition, the draft refers to the necessary adaptation of the provision under EU law as a result of art. 6 of the Anti-Tax Avoidance Directive (ATAD). 

In principle, sec. 50d (3) ITA-D has a two-step structure, as follows:

  • In a first step, the basic suspicion of an abusive structure is defined: This abusive structure exists if:
    • the shareholder (new; or the beneficiaries) cannot claim relief under the same provision and
    • if the company does not generate the income, which is subject to withholding tax in connection with its own economic activity. The generation and forwarding of income to shareholders or beneficiaries is not considered as own economic activity. Activities which are not performed with an appropriately equipped business establishment are also not considered as own economic activities (so-called “passing-through structures”). Shareholders in the sense of the new wording “beneficiaries” are now not only shareholders according to civil law but also persons who fulfill the same function for tax purposes.
  • If there is a suspicion of abuse, this might be refuted in the second step in some individual cases, if the main purpose of the arrangement was not to obtain a tax advantage. Therefore, the shareholders’ relief entitlements under other provisions (sec. 43b ITA or DTT) only apply within the scope of this counter-evidence, according to the draft. Also according to the draft, in contrast with the current version of sec. 50d (3) ITA, all non-tax reasons, including those arising from a group relationship, must be considered.

In accordance with the current version of sec. 50d (3) ITA, foreign publicly-listed companies are still exempt from the above-mentioned regulation, as long as a significant and regular trade is taking place at the stock exchange.

The revision of sec. 50d (3) ITA applies only for claims which arise from the DTTs. However, due to the amended provisions of sec. 43b and sec. 50g ITA, the revision must also be observed in the same way for the relief claims regulated therein.

Appraisal of the planned amendments to sec. 50d (3) ITA-D

While the logic of the current version of sec. 50d (3) ITA was maintained in sec. 50d (3) ITA-D, the new provision, as described above, contains both tighter measures and relaxations at the same time: on the one hand, the first requirement of para. 3 tightens the anti-treaty-shopping rule, as the basic suspicion against the foreign shareholders is fulfilled even if they had a comparable claim to relief based on another provision. On the other hand, the possibility of proving the contrary represents a possible relief, and is certainly welcomed.

Entering into force

The above-mentioned electronic application and assessment procedure will not come into force before the end of 2023, as the necessary technical requirements still have to be implemented. The possibility of exemption from withholding and refunding taxes according to Sec. 50c ITA is expected to apply for income received after 31 December 2021.

It is not clear yet when the new provisions of sec. 50d (3) ITA-D will become effective, as the draft bill has no special regulation in that regard. This should be specified during the legislative procedure.

Need for action

In particular, the fact that exemption certificates can no longer become valid retroactively starting from the date of receipt of the exemption application by the Federal Central Tax Office, but only from the date of issue of the exemption certificate, requires in practice that the application is made sooner, in order to avoid having to go through refund proceedings. It remains open to what extent faster processing of applications can be achieved as a result of the digitisation of processes.

Against the background of the planned revision of sec. 50d (3) ITA, it is advisable to analyse at an early stage whether the substance requirements are met in each individual case.

Support by BDO

Please feel free to contact your BDO contact in order to identify the need for action. We will be happy to make an individual recommendation for you. If necessary, we will work with our colleagues in BDO Member Firms from our international network in more than 160 countries.

Henrik Meyer

Daniela Lechler