Arm’s Length Net Income for German Withholding Tax and Tax Declaration Purposes

• Autores: Ulf Andersen
• Localización: Intertax, ISSN 0165-2826, Vol. 48, Nº. 8-9, 2020, págs. 831-835
• Idioma: inglés
• Texto completo no disponible (Saber más ...)
• Resumen

  • One hundred years after its creation in 1920, (DE: section 49 (1) no. 6 had originally been created as section 2 no. 2 of the ITA 1920; its content had been moved to the current section 49 in 1934: see M. Stöber, W. Anissimov, I. Heß, G. Hiller, T. Kaligin, J-P. Naujok, section 49, no. 1902 in: Income Tax Act, Commentary, (F. Lademann ed. Publisher, 2020; formerly commented on by Jü. Lüdicke). ) section 49 (1) no. 6 and its 1994 derivative no. 2f Income Tax Act (ITA) are becoming the focal point of a heated discussion, primarily among US headquartered multinationals. The reason for this development is that the Big Four, as their auditors, are forcing their audit clients to build reserves for the potential application of sec. 49 (1) no. 6/no. 2f ITA.( For years after 2005, DE: section 49 (1) no. 2f ITA is the only applicable provision as it reflects the change in scope of DE: section 8 (2) Corporation Tax Act to only assume a business activity by nature of a corporate body if such corporate body was subject to unlimited tax liability in Germany. ) The reason is that this provision may apply to a specific type of cross-border intra-group transaction into which US headquartered multinationals have entered. Transactions in scope are the sale or licensing of intellectual property that a larger number of US multinationals have entered into in the aftermath of the introduction of the BEPS measures to the extent that they have a German nexus.(OECD, Final Reports on Actions 1 through 15, OECD/G20 Base Erosion and Profit Shifting Project, (OECD Publishing, 2015), https://www.oecd.org/tax/beps/beps-actions/ (accessed 28 May 2020). These measures have been translated into national tax provisions, e.g. the German ATAD Transformation Act, Bill as of 24 Mar. 2020, and treaty provisions through the OECD, Multilateral Convention to implement Tax Treaty related Measures to prevent Base Erosion and Profit Shifting (OECD Publishing, 2016) (Multilateral Instrument or MLI), available at, https://www.oecd.org/tax/treaties/multilateral-convention-to-implement-tax-treaty-related-mea sures-to-prevent-beps.htm (accessed 28 May 2020)).