Since the assessment period 2009 the treatment of private capital gains with regard to income tax in Germany has been newly regulated by the flat rate withholding tax. However, the regulation in the income tax law envisages numerous exceptions which are to be observed with the taxation. The fields of application of the flat rate withholding tax are systematically delimited. The numerous individual questions relating to the flat rate withholding tax will not be looked into.
Table of Contents
1. Principle of subsidiarity
2.
2.2 Exceptions from the flat rate withholding tax according to § 32d Par. 2 EStG
2.2.1 Exceptions for capital investments within the meaning of § 20 Par. 1 No. 4 and 7 EStG
2.2.2 Exceptions for capital investments within the meaning of § 20 Par. 1 No. 6 EStG
2.2.3 Exceptions for capital investments within the meaning of § 20 Par. 1 No. 1 and 2 EStG
2.3 Assessment according to § 32d Par. 3 EStG
2.4 Assessment according to § 32d Par. 4 EStG
2.5 Assessment according to § 32d Par. 6 EStG
Objectives and Research Themes
The primary objective of this work is to systematically identify and analyze the specific sub-areas and legal conditions under which the German flat rate withholding tax does not apply to capital gains. The study addresses the complexity created by numerous exceptions in the Income Tax Act, aiming to clarify the regulatory framework for international capital transactions.
- The principle of subsidiarity in relation to capital gains taxation.
- Exceptions for capital investments designed to prevent structural abuse.
- Assessment options and obligations for taxpayers under various sections of the Income Tax Act (§ 32d EStG).
- The impact of tax deduction procedures on international capital investors.
- Legal consequences of non-application, including the shift to individual income tax rates.
Excerpt from the Publication
2.2.1 Exceptions for capital investments within the meaning of § 20 Par. 1 No. 4 and 7 EStG
Possible structural abuses for interest income and for profit shares of the dormant shareholder are to be avoided by § 32d Par. 2 No. 1 EStG. The investor should not be able to specifically use the existing differences in tax rate levels between his individual income tax rate and the withholding tax rate of 25 % to reduce his tax burden.
Income from dormant participations and profit participating loans also fall under § 32d Par. 2 No. 1 EStG as well as the income from other capital claims of all kinds (e.g. interest from loans to spouses, shareholder loans, bank deposits). These also include income from the sale, redemption or assignment of the capital claim or the dormant share.
Such capital gains must be included in the income tax assessment. The withholding effect of the tax deduction is to be refused accordingly, if first of all creditors and debtors are closely associated persons, secondly if the capital provider holds at least 10% of the shares in the paying joint stock company or cooperative; this also applies if the creditor of the capital gains is a person who is closely associated with the shareholders, who holds at least 10% of the shares, or if thirdly a third party owes the capital gains, who on his part handed over capital to a plant of the investor – so-called Back-to-back financings.
Summary of Chapters
1. Principle of subsidiarity: Explains how capital gains are excluded from the flat rate tax if they are attributed to other types of income like trade or agriculture.
2.2 Exceptions from the flat rate withholding tax according to § 32d Par. 2 EStG: Details the specific legal exclusions that prevent taxpayers from using the flat rate to circumvent higher individual income tax rates.
2.2.1 Exceptions for capital investments within the meaning of § 20 Par. 1 No. 4 and 7 EStG: Discusses measures against structural abuse, particularly regarding dormant participations and loans between associated parties.
2.2.2 Exceptions for capital investments within the meaning of § 20 Par. 1 No. 6 EStG: Examines the taxation of life insurance benefits under specific time-based and age-related conditions.
2.2.3 Exceptions for capital investments within the meaning of § 20 Par. 1 No. 1 and 2 EStG: Outlines the criteria under which dividends and liquidation payments are excluded from the flat rate withholding tax.
2.3 Assessment according to § 32d Par. 3 EStG: Analyzes the taxpayer's obligation to declare capital gains when they were not subject to the initial domestic capital gains tax deduction.
2.4 Assessment according to § 32d Par. 4 EStG: Addresses the corrective assessment option for taxpayers, aimed at mitigating weaknesses in the standard tax deduction procedure.
2.5 Assessment according to § 32d Par. 6 EStG: Describes the "large assessment option" where the individual tax rate is applied if it is lower than the 25% flat rate.
Keywords
Flat rate withholding tax, § 32d EStG, Income Tax Act, capital gains, tax assessment, subsidiarity, structural abuse, dormant participations, Back-to-back financing, income tax rate, tax deduction, capital investment, savers flat rate, dividends, life insurance.
Frequently Asked Questions
What is the core focus of this publication?
The work examines the systematic non-application fields of the German flat rate withholding tax, focusing on how and why certain capital gains are excluded from this tax regime.
What are the primary thematic areas covered?
The themes include the principle of subsidiarity, exceptions related to structural abuse, specific rules for life insurance and dividends, and various assessment procedures under the Income Tax Act.
What is the ultimate objective of the research?
The goal is to provide clarity on the complex regulatory sub-areas where the flat rate withholding tax does not apply, helping stakeholders navigate tax obligations in international capital transactions.
Which scientific method is utilized?
The research is based on a comprehensive analysis of current German tax law and relevant legal literature.
What topics are addressed in the main body?
The main body covers legal exclusions, the definition of associated persons, the consequences of assessment obligations, and mechanisms for corrective tax assessments.
Which key terms define this work?
Key terms include flat rate withholding tax, § 32d EStG, capital gains, tax deduction, and structural abuse.
What constitutes a "Back-to-back financing" in this context?
It refers to situations where an investor maintains a capital deposit at a bank while simultaneously obtaining a loan for their business, which the legislator excludes from the flat rate tax to prevent abuse.
Why is the "large assessment option" relevant for investors?
The large assessment option allows investors whose individual income tax rate is below 25% to opt for that lower rate, potentially resulting in a more favorable tax outcome determined by financial authorities.
How does the principle of subsidiarity affect capital gains?
If capital gains are attributable to other types of income (e.g., trade or agriculture), they fall under the priority of those income types, excluding them from the standard flat rate withholding tax application.
- Citation du texte
- Andreas Laux (Auteur), 2011, Systematic non-application fields of the flat rate withholding tax, Munich, GRIN Verlag, https://www.grin.com/document/184878
