Tax Treaty Case Law around the Globe 2012

Germany: Cross-Border Group Consolidation

33.1. Introduction

The German Corporate Tax Act (Körperschaftsteuergesetz, KStG) and Trade Tax Act (Gewerbesteuergesetz, GewStG) provide for a consolidation regime, the so called Organschaft. For corporate tax purposes, the controlled company (Organgesellschaft) is allowed to transfer all of its profits or losses to the controlling company. However, transactions between the controlled and the controlling company remain taxable. For trade tax purposes, the controlled company loses its legal capacity and becomes a permanent establishment of the controlling company. Consequently, transactions between the controlled and the controlling company are no longer taxable. The most important advantages of creating a consolidation are the following: Profits and losses of different entities may be consolidated; dividend distribution between subsidiary and parent are no longer subject to taxation; and foreign exempt income may be passed on without triggering additional taxes.

Trade tax seeks to subject to tax the objective ability to pay. Investments in equity should be treated in a comparable way as investments financed by debt. For that reason, interest payme...