Germany has met all aspects of the terms of reference (OECD, 2021[3]) (ToR) for the calendar year 2020 (year in review), and no recommendations are made.
Germany can legally issue five types of rulings within the scope of the transparency framework.
In practice, Germany issued rulings within the scope of the transparency framework as follows:
Type of ruling | Number of rulings |
|---|---|
Past rulings | 30 |
Future rulings in the period 1 April 2016 – 31 December 2016 | 7 |
Future rulings in the calendar year 2017 | 10 |
Future rulings in the calendar year 2018 | 10 |
Future rulings in the calendar year 2019 | 8 |
Future rulings in the year in review | 13 |
No peer input was received in respect of the exchanges of information on rulings received from Germany.
474. Germany can legally issue five types of rulings within the scope of the transparency framework: (i) preferential regimes;1 (ii) cross-border unilateral APAs and any other cross-border unilateral tax rulings (such as an advance tax ruling) covering transfer pricing or the application of transfer pricing principles; (iii) rulings providing for unilateral downward adjustments; (iv) permanent establishment rulings; and (v) related party conduit rulings.
475. For Germany, past rulings are any tax rulings within scope that are issued either: (i) on or after 1 January 2014 but before 1 April 2016; or (ii) on or after 1 January 2010 but before 1 January 2014, provided they were still in effect as at 1 January 2014. Future rulings are any tax rulings within scope that are issued on or after 1 April 2016.
476. In the prior years’ peer review reports, it was determined that Germany’s undertakings to identify past and future rulings and all potential exchange jurisdictions were sufficient to meet the minimum standard. In addition, it was determined that Germany’s review and supervision mechanism was sufficient to meet the minimum standard. Germany’s implementation remains unchanged, and therefore continues to meet the minimum standard.
477. Germany has met all of the ToR for the information gathering process and no recommendations are made.
478. Germany has international agreements permitting spontaneous exchange of information, including being a party to (i) the Multilateral Convention on Mutual Administrative Assistance in Tax Matters: Amended by the 2010 Protocol (OECD/Council of Europe, 2011[4]) (“the Convention”), (ii) the Directive 2011/16/EU with all other European Union Member States and (iii) bilateral agreements in force with 95 jurisdictions.2
479. For the year in review, the timeliness of exchanges is as follows:
|
Future rulings within the scope of the transparency framework |
Number of exchanges transmitted within three months of the information becoming available to the competent authority or immediately after legal impediments have been lifted |
Delayed exchanges |
||
|---|---|---|---|---|
|
Number of exchanges transmitted later than three months of the information on rulings becoming available to the competent authority |
Reasons for the delays |
Any other comments |
||
|
11 |
2 |
See below |
N/A |
|
|
Follow up requests received for exchange of the ruling |
Number |
Average time to provide response |
Number of requests not answered |
|---|---|---|---|
|
0 |
N/A |
N/A |
480. With respect to the two delayed exchanges, Germany notes that these were due to an addition of more information and objections to the exchange by the domestic taxpayer respectively. In particular, these exchanges relate to rulings issued by local tax authorities, who wrongly carried out hearings for domestic parties affected by these rulings before exchanging the information. As such, the Competent Authority experienced delays. Germany notes that this goes counter to the BMF letter of 17 August 2017 on Tax Rulings which instructs local tax authorities not to hold a hearing for future rulings prior to the exchange of information. Consequently, as the local tax authorities should not have heard the parties involved, the necessary notifications for future rulings should already have taken place before the ruling is issued. Therefore, it is not expected that these will be a recurring issue, and this will be monitored in next year’s peer review report.
481. In the prior years’ peer review reports, it was determined that Germany’s process for the completion and exchange of templates were sufficient to meet the minimum standard. With respect to past rulings, no further action was required. Germany’s implementation in this regard remains unchanged and therefore continues to meet the minimum standard.
482. Germany has the necessary legal basis for spontaneous exchange of information, a process for completing the templates in a timely way and has completed all exchanges. Germany has met all of the ToR for the exchange of information process and no recommendations are made.
483. The statistics for the year in review are as follows:
|
Category of ruling |
Number of exchanges |
Jurisdictions exchanged with |
|---|---|---|
|
Ruling related to a preferential regime |
0 |
N/A |
|
Cross-border unilateral APAs and any other cross-border unilateral tax rulings (such as an advance tax ruling) covering transfer pricing or the application of transfer pricing principles |
5 |
Canada, Netherlands, United States |
|
Cross-border rulings providing for a unilateral downward adjustment to the taxpayer’s taxable profits that is not directly reflected in the taxpayer’s financial / commercial accounts |
1 |
De minimis rule applies |
|
Permanent establishment rulings |
7 |
Belgium, Netherlands, Switzerland, United States |
|
Related party conduit rulings |
0 |
N/A |
|
Total |
13 |
484. Germany does not offer an intellectual property regime for which transparency requirements under the Action 5 Report (OECD, 2015[1]) were imposed.
Aspect of implementation of the transparency framework that should be improved | Recommendation for improvement |
|---|---|
No recommendations are made. |
[3] OECD (2021), BEPS Action 5 on Harmful Tax Practices - Terms of Reference and Methodology for the Conduct of the Peer Reviews of the Action 5 Transparency Framework, OECD Publishing, Paris, http://www.oecd.org/tax/beps/beps-action-5-harmful-tax-practices-peer-review-transparency-framework.pdf.
[1] OECD (2015), Countering Harmful Tax Practices More Effectively, Taking into Account Transparency and Substance, Action 5 - 2015 Final Report, OECD/G20 Base Erosion and Profit Shifting Project, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264241190-en.
[2] OECD (ed.) (2017b), Harmful Tax Practices - 2017 Progress Report on Preferential Regimes, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264283954-en.
[4] OECD/Council of Europe (2011), The Multilateral Convention on Mutual Administrative Assistance in Tax Matters: Amended by the 2010 Protocol, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264115606-en.
← 1. With respect to the following preferential regimes: 1) Tonnage tax regime.
← 2. Participating jurisdictions to the Convention are available here: www.oecd.org/tax/exchange-of-tax-information/convention-on-mutual-administrative-assistance-in-tax-matters.htm. Germany also has bilateral agreements with Albania, Algeria, Argentina, Armenia, Australia, Austria, Bangladesh, Belarus, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Canada, China (People’s Republic of), Costa Rica, Côte d’Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Finland, France, Georgia, Ghana, Greece, Hungary, Iceland, India, Indonesia, Iran, Ireland, Israel, Italy, Jamaica, Japan, Jersey, Kazakhstan, Kenia, Korea, Kosovo, Kuwait, Kyrgyzstan, Latvia, Liberia, Liechtenstein, Lithuania, Luxembourg, Malaysia, Malta, Morocco, Mauritius, Mexico, Moldavia, Mongolia, Montenegro, Namibia, Netherlands, New Zealand, North Macedonia, Norway, Pakistan, Philippines, Poland, Portugal, Romania, Russia, Serbia, Singapore, Slovak Republic, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Uzbekistan, Venezuela, Viet Nam, Zambia, Zimbabwe.