The ATAD general anti-abuse rule in Germany

#Auteur: Gabriele¤ RAUTENSTRAUCH

#Qualités: Steuerberaterin, Partner, WTS Group AG Steuerberatungsgesellschaft, München, Germany

As the German tax laws contains since decades a general anti-abuse rule in Sec. 42 of the German Fiscal Code, the German legislator did not see the necessity to implement the ATAD general anti-abuse rule into German law. The German tax authorities as well as the main tax commentators are of the opinion that the minimum standard of the ATAD GAAR is completely fulfilled by the already existing German GAAR in Sec. 42 of the German Fiscal Code.

Introduction

1. The following table shows how the Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (in the following: ATAD¹) is been reflected in German tax law. Most of the tax rules governed in ATAD - except of the anti-hybrid rules (Article 9 of the ATAD) - were already largely existent when the ATAD entered into force, such as the exit taxation, the GAAR, CFC rules. In the view of commentators, the German interest expense limitation has even been used as “best practice” for the drafting of Article 4 of the ATAD also resulting in no implementation measures. With respect to the German GAAR, no necessity had been seen to implement Article 6 of the ATAD into German tax law (see “pre-existing” in the column “Transposed”) at all.

However, with respect...