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July 15, 2021
2021-1355

German Ministry of Finance issues updated guidance on extraterritorial taxation of IP, extending deadline for applicability of retroactive exemption in “clear” treaty cases

Executive summary

On 14 July 2021, the German Ministry of Finance published an update to the guidance issued on 11 February 2021 addressing the currently discussed nonresident taxation of royalty income and capital gains relating to rights solely because these rights are registered in a public German book or register (for background, see EY Global Tax Alert, German Ministry of Finance finalizes guidance on German extraterritorial taxation of intellectual property, dated 11 February 2021).

The update essentially extends the cutoff date and filing deadline for the application of a retroactive exemption for “clearly” treaty-protected royalty payments and stipulates that this procedure is applicable for payments made in the past or by 30 June 2022 (before the updated guidance, the applicable cutoff date was 30 September 2021). Further, the deadline to file an application for exemption as the key requirement for this procedure has been pushed out to 30 June 2022 as well (the deadline was previously 31 December 2021).

Detailed discussion

Extraterritorial taxation

“Extraterritorial” intellectual property (IP) transactions include the licensing or sale of IP rights between, or in the case of a sale by, parties not resident in Germany.

Based on the wording of the German statute provisions (Sec. 49 (1) No. 2f and No. 6 Income Tax Act (ITA)), where a non-German resident person licenses or sells IP that is registered in a German public register (German-nexus IP), Germany can claim a taxing right under domestic law.

Under the plain language of the statute, a German taxation right may cover German-nexus IP licensing or sale transactions which take place solely between, or in the case of a sale by, nonresident parties. The statute also does not differ between transactions which occur between related or unrelated parties.

Taxation of royalty income is generally administered by way of a withholding tax of 15.825% to be withheld, declared and transferred by the licensee. A capital gain is generally taxed through a nonresident tax return to be filed by the seller. The rule is currently subject to a controversial debate and causes significant issues for both taxpayers as well as the German tax authorities.

Royalty payments already made or to be made by 30 June 2022

The guidance stipulates that a licensee can abstain from withholding, declaring and transferring withholding tax on royalty payments made to a foreign licensor in the past or by 30 June 2022, if the following requirements are met:

  • The debtor of the remuneration, the licensee, is not resident in Germany at the moment of the payment. For a corporation, this means that it has neither its corporate seat nor its effective place of management in Germany.
  • The recipient of the remuneration, the licensor, is resident in a jurisdiction with which Germany had an applicable treaty in place at the moment of the payment. Further, the licensor needs to be:
    • Actually entitled to treaty benefits
    • The beneficial owner of the income for purposes of the treaty
    • Able to meet the requirements of the German anti-treaty shopping rules
  • The licensor files an application for an exemption from withholding taxes with the Federal Central Tax Office by 30 June 2022 (to the extent the application includes the years 2013 and before, a copy of the application is to be sent to the local tax office (Munich)). A separate application for the licensor is required for each license agreement unless the different contracts are entered into between the same parties. This means that multiple contracts between a specific licensor and the same licensee can be covered by one application but separate applications have to be filed if a licensor has multiple licensees.
  • Together with the application, all agreements relating to the remuneration covered by the application have to be disclosed to the Federal Central Tax Office. For group internal transactions, it is required, in addition, to disclose all additional agreements conveying the same rights to other related parties.
  • A German translation of the essential sections of the agreements disclosed in accordance with the above has to be provided in addition to the original documents. According to the guidance, the essential sections concern the conveyance of the rights, the ownership of the rights as well as the remuneration and payment terms.

A licensee can only abstain from withholding tax if all of these requirements are cumulatively met for a specific licensor. The guidance further allows that a licensee may apply for the exemption instead of the licensor if the licensor authorizes the licensee to do so. If the license no longer exists, the licensee can apply for an exemption even without an authorization of the licensor if it can be demonstrated that the (former) licensor is either not able to or not willing to do so.

In addition, this simplification is not applicable in cases in which the actual eligibility of the licensor for treaty benefits is doubtful, taking into account not only the treaty but also the German domestic anti-treaty shopping rules. According to the guidance, relevant doubts exist in particular in the case of dual-resident or hybrid entities or in the case of other qualification mismatches. If the recipient of the royalty payments is a tax transparent partnership for German tax purposes, the guidance allows application of this relief if the requirements are met at the level of the partners.

If the Federal Central Tax Office should reject the application for an exemption from withholding tax, the 11 February guidance provides that all withholding tax returns for the remuneration in question must be filed within one month after the rejection. This applies even if an appeal is filed against the rejection of the application. The guidance is not entirely clear whether this only applies to withholding tax on payments for which the licensee abstained from withholding in accordance with the guidance or whether this also applies to “historic” royalty payments.

Royalty payments made after 30 June 2022

The exception explained above does not apply for royalty payments received by a licensor after 30 June 2022. According to the 11 February guidance, the general provisions of the ITA should apply in this regard.

Capital gain transactions and income determination

The updated guidance does not provide for any changes to the stipulations regarding capital gain transactions or income determination included in the original guidance dated 11 February 2021 (see EY Global Tax Alert cited above on 11 February guidance for details).

Implications

The extension of the applicable cutoff date and filing deadline for a retroactive exemption in treaty protected cases is a positive response by the tax authorities to be seen in light of: (i) the expected processing time of filed applications given the very high number of filings; and (ii) a potential reevaluation of the overall issue in summer 2022.

However, it is entirely unclear whether another legislative attempt will be made in this regard and it is still necessary to carefully review and assess the next steps for affected businesses. If applications for (retroactive) exemptions from withholding taxes are filed, it appears crucial to prepare the applications with the utmost care and supported by substantial documentation given the significant adverse consequences of a rejection (filing of withholding tax returns within one month after rejection).

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For additional information with respect to this Alert, please contact the following:

Ernst & Young GmbH

Ernst & Young LLP (United States), German Tax Desk, New York

 

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