Tax Treaty Case Law around the Globe 2013

S. 277 Germany: Pensions vs. Business Income

Alexander Rust

1. S. 279 Introduction

Germany applies a schedular tax system and divides income into seven different categories. The category “business income” is defined in a very broad way. Income falls within the ambit of the category “business income” if the income generating activity is exercised in an independent manner, it lasts for a certain period of time, the taxpayer has the goal of making a profit and he advertises his activity on the market. In addition, the activity must neither fall within the ambit of income from agriculture and forestry, nor within the ambit of income from independent personal services.

German domestic tax law contains many fictions. Under certain circumstances, pension payments paid by a partnership to one of the partners may be re-characterized as business income. The question raised in this case was whether the term “business profits” under Article 7 of the OECD Model Convention should be interpreted via Article 3(2) of the OECD Model in light of German domestic law meaning that the pension payments would fall within the ambit of Article 7, or whether the terms “business” and “business profits” should be interprete...