Depreciation and amortisation
Depreciation on movable fixed assets is calculated on the straight-line method over the asset’s anticipated useful life. Depreciation takes the residual value of the asset into account only if it is material, with any gains on a sale being treated as normal business income.
Buildings are depreciated on a variety of straight-line or reducing-rate systems designed to reach a full write-down between 25 and 50 years, depending on the age of the building and on whether the taxpayer was its first owner.
In addition to normal depreciation, special depreciation is deductible for tax purposes in certain limited circumstances (e.g. small businesses, ancient monuments, buildings in designated renovated city zones).
Acquired intangibles are amortised straight-line over their estimated useful lives; goodwill is amortised over 15 years.
A currently ongoing legislative procedure foresees the introduction of a temporary special depreciation for the acquisition or construction of new rental apartments/residential buildings with the aim of stimulating private investment. The draft bill provides that, in the first four years, special depreciation of up to 5% per year may be applied in addition to the regular depreciation if certain conditions are met.
Start-up and formation expenses are deductible as incurred.
Annual net interest expense (the excess of interest paid over that received) of group companies is only deductible at up to 30% of EBITDA for corporation and trade tax purposes. The 30% limitation applies to all interest, whether the debt is granted by a shareholder, related party, or a third party.
This limitation does not apply where the total net interest expense for the year is less than EUR 3 million or where the net amount paid to any one shareholder of more than 25% (or a related party) is no more than 10% of the total. However, this latter concession is dependent on the demonstration that the equity-to-gross assets ratio of the company is no more than two percentage points below that of the group as a whole. Unused EBITDA potential may be carried forward for up to five years to cover future excess interest cost. This carryforward is otherwise subject to the same principles as the loss carryforward, including curtailment on change of shareholder(s).
In a decision as of 14 October 2015, the Federal Fiscal Court held the interest limitation to be in breach of the constitution and has asked the German Federal Constitutional Court to give a definitive ruling. Since the Federal Fiscal Court is of the view that the provision is unconstitutional, it has suspended the proceedings in a pending case and submitted the question to the Constitutional Court. Only the Constitutional Court is authorised to decide if the regulation is unconstitutional and may thus no longer be applied.
It is emphasised that the interest limitation is additional to, and not a substitute for, the transfer pricing requirement that related-party finance be at arm’s length.
Following (and beyond) the OECD recommendations on Action 5 of the Base Erosion and Profit Shifting (BEPS) Project, Germany has introduced a restriction on the deductibility of certain royalty payments to related parties applicable from 2018 onwards to counter so-called harmful preferential tax regimes. According to the royalty limitation rules, expenses arising after 31 December 2017 for the assignment of use or the right to use rights, in particular of copyrights and industrial property rights, in trade, technical, scientific and similar know-how, knowledge, and skills (e.g. plans, designs, processes), may not be a deductible business expense or may only be partially deductible.
The limitation will apply where:
- the recipient of the income from the assignment of rights is a related party, vis-à-vis the debtor
- the income in the hands of the (direct or indirect) recipient is subject to a special preferential regime, which does not correspond to the OECD Modified Nexus Approach, and
- the income received for the assignment of the rights is taxed at a rate less than 25% (low taxation) at the level of the (direct or indirect) recipient.
If the conditions of the provisions are met, the expenses in question will become proportionately non-deductible. The non-deductible portion of expenses is calculated as follows:
(25% - Income tax burden in %) / 25%
Bad debts incurred on trading with unrelated parties are deductible once it is apparent that they are irrecoverable and all attempts to pursue the debt have failed or been abandoned. Provision for future bad debts may be made; general provisions must reflect the past experience of the business; specific provisions require specific justification based on the actual circumstances. Expenses from the write-down of loans or similar liabilities due to shareholders of more than 25% or to their related parties may not be deducted from taxable income unless a third-party creditor would have granted the loan or allowed it to remain outstanding in otherwise similar circumstances.
Donations to recognised charities in cash or in kind are deductible up to the higher of 20% of otherwise net taxable income or 0.4% of the total of sales revenue and wages and salaries paid during the year. Donations to charities registered in other EU/EEA member states also qualify for deduction if the recipient charity meets the German requirements for recognition.
Fines and penalties
Fines and other penalty payments levied by a court, or other authority, with an intent to punish are not deductible. By contrast, those levied to confiscate ill-gotten gains, or to relieve damage to the victims or to the public good, are deductible. Penalty payments levied for attempted tax evasion are not deductible, but late payment surcharges are deductible if the tax itself is (e.g. VAT).
All taxes borne are deductible except for corporation tax, trade tax, and the VAT on most non-deductible expenses.
Net operating losses
Net operating losses are carried forward without time limit. For corporation tax (but not trade tax), there is an optional carryback to the previous year of up to EUR 1 million.
The loss relief brought forward claimable in any one year is limited to EUR 1 million plus 60% of current income exceeding that amount. The remaining 40% of income over EUR 1 million is charged to trade and corporation taxes at current rates. This is referred to as ‘minimum taxation’.
The loss carryforward, as well as current losses of the ongoing fiscal year accrued up to the date of the harmful share transfer, is forfeited if a single (immediate or ultimate) shareholder acquires more than 50% of the issued capital (voting rights) within a five-year period.
The forfeiture rule does not apply to share acquisitions as part of a group internal reorganisation without effect on the single ultimate shareholder, or inasmuch as the loss carryforward is covered by hidden reserves in the company’s assets that, on realisation, will lead to German taxation. This excludes the appreciation in value of shareholdings in other companies as well as business assets held in foreign PEs.
Further, there is an exemption from the forfeiture of tax loss carryforwards for share transfers for the purpose of restructuring the respective corporate entity. In a decision of 26 January 2011, the EC held the said provision to be state aid and incompatible with the internal market. The application of the provision was then subsequently suspended. In a judgement dated 28 June 2018, the ECJ annulled the decision of the EC. Therefore, the German legislature has decided that the provision is to be applied retroactively from 1 January 2008.
For harmful share transfers occurring after 31 December 2015, an application may be made under a provision introduced in December 2016 to avoid a loss forfeiture. Relief may be available where the company has maintained exclusively the same business during a specified observation period and during this period no ‘harmful event’ has occurred. In this context, harmful events include, for example, the discontinuance of the business, the commencement of an additional business, and a change in activity/business sector. Where the conditions are fulfilled and the company has made the application, the total tax loss carryforward available at the end of the period of assessment, in which the harmful share transfer occurred, will be classified as so-called ‘continuance-bound’ loss carryforward (Fortführungsgebundener Verlust).
The occurrence of one of the harmful events as set out in the provision will result in the forfeiture of the continuance-bound loss carryforward last assessed as far as the continuance-bound tax loss carryforward is not matched by hidden reserves under the hidden reserve exception.
In November 2018 and following a decision of the German Federal Constitutional Court on 29 March 2017, which required the legislature to amend the existing rules, the loss forfeiture rule according to which an acquisition of more than 25% up to 50% resulted in a partial loss forfeiture has been repealed with retroactive effect from 2008 onwards.
In a decision of 29 August 2017, the Lower Tax Court of Hamburg has referred the question to the German Federal Constitutional Court whether the full forfeiture of losses in the case of a harmful share transfer of more than 50% is unconstitutional, which is the opinion of the Lower Tax Court of Hamburg. Only the Constitutional Court is authorised to decide if the regulation is unconstitutional.
Payments to foreign affiliates
A German corporation can claim a deduction for remuneration, such as interest charges (subject to the interest limitation) service fees, and royalties (subject to the royalty limitation), paid to foreign affiliates, provided the amounts are at arm’s length. Detailed provisions covering both form and substance define this. In particular, all services must be covered by prior written agreement, and it is also necessary to conclude agreements for the purchase and sale of goods in writing where this would be usual between third parties (e.g. for quantity rebates on sales). The substance tests must be satisfied, both as to value for money and as to business relevance. Thus, the manager of a German subsidiary must be able to show an adequate business benefit from a related-party transaction. These and all other aspects of inter-company (related-party) trading fall under strict and extensive documentation requirements, breach of which can lead to serious penalties.
Special features for trade tax
There are a number of differences between the income subject to trade tax and to corporation tax. The most significant is the trade tax disallowance of one-quarter of the interest costs, including interest implicit in leasing, rental, and royalty charges. Banks have an exemption from this interest disallowance.