Investment Taxation | Bundesverband Alternative Investments e.V.: Home (2024)

Investment Taxation

19. June 2023

  • ATAD-UmsG
  • DAC 6
  • InvStG
  • DAC 7
  • GewStG
  • Steuerrecht
  • UStAE
  • UStG

The topic investment taxation includes in particular the taxation of investment funds and their investors on the basis of the Investment Tax Act (InvStG), which was completely reformed by the Investment-Tax-Reform-Act with effect from 1 January 2018. More specific details and explanations on the InvStG can be found in a number of circulars issued by the German Ministry of Finance.

In addition to the InvStG, there are a number of other tax laws relevant for investment funds and their investors which play an important role in the association's activities. These are, for example, at the national level the foreign taxation act (AStG), the income tax act (EStG), the trade tax act (GewStG) or the value added tax act (UStG), or at the European or international level the amending directive on the mandatory automatic exchange of information (Directive on Administrative Cooperation - DAC), the Anti Tax Avoidance Directive (ATAD), or the project for a Financial Transaction Tax (FTT).

InvStG

Legal text

Investment Act (in German language)

German/English version of the InvStG

Circulars related to the Investment Act (in German)

BMF-Schreiben vom 21. Mai 2019(zu §§ 1 - 12, 15 - 24, 50 und 56 InvStG)

BMF-Schreiben vom 28. Juli 2020(Bezugsschreiben zu Auslegungsfragen)

BMF-Schreiben vom 29. Oktober 2020(zu §§ 27 - 29, 32, 40, 48, 51 - 54 InvStG)

BMF-Schreiben vom 20. Januar 2021(zu §§ 17, 26, 30, 31, 35, 37, 44, 45 InvStG)

BMF-Schreiben vom 29. April 2021(zu §§ 2, 20, 33, 36, 49 InvStG)

BMF-Schreiben vom 1. Juni 2021(zu § 7 InvStG)

BMF-Schreiben vom 18. Juni 2021(zu §§ 34, 38, 39, 42 InvStG)

BMF-Schreiben vom 18. August 2021(zu §§ 17 und 22 InvStG)

BMF-Schreiben vom 15. März 2022(zu §§ 17, 22, 31, 32, 37, 40, 49, 50, 56 InvStG)

BMF-Schreiben vom 6. September 2022(zu §§ 7, 8, 33, 35, 36, 41, 46, 47, 49, 50, 56 InvStG)

BMF-Schreiben vom 30. Dezember 2022(zu §§ 31 und 33 InvStG)

BMF-Schreiben vom 5. September 2023 (zu §§ 19 und 31 InvStG)

DAC

DAC 6

Council Directive (EU) 2018/822 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation on reportable cross-border arrangements of May 25, 2018 (DAC 6) requires EU Member States to create rules under which certain cross-border tax arrangements are to be reported to the tax authorities of the Member States and then automatically exchanged between the Member States.

DAC 6 was transposed into German law with the "Act on the Introduction of an Obligation to Report Cross-Border Tax Arrangements" of December 21, 2019. The law came into force on January 1, 2020.

Directive (EU) 2018/822 and thus also the Act affect cross-border tax arrangements for which the first step of implementation took place after June 24, 2018. Notifications of cross-border tax arrangements have been required since July 1, 2020. These notifications must subsequently be entered in an EU central directory in order to enable the automatic exchange of information between countries.

Gesetz zur Einführung einer Pflicht zur Mitteilung grenzüberschreitender Steuergestaltungen

DAC 6 (RICHTLINIE (EU) 2018/822)

Informationsseite des Bundeszentralamtes für Steuern (BZSt) zu DAC-6

DAC 7

On January 1, 2023, the Act on the Reporting Obligation and Automatic Exchange of Information of Reporting Platform Operators in Tax Matters (Platform Tax Transparency Act - PStTG) came into force. The Act is part of the Act implementing Council Directive (EU) 2021/514 of 22 March 2021 (DAC 7) amending Directive 2011/16/EU on administrative cooperation in the field of taxation and modernizing tax procedural law of 20 December 2022.

The PStTG introduces an obligation for operators of digital platforms (platform operators) to report information on income generated by providers on these platforms to the BzSt under certain circumstances. It merely regulates procedural rules with the aim of providing the tax authorities with better access to information in order to gain knowledge of the economic activities of providers on digital platforms. The PStTG does not contain any substantive provisions and does not affect other tax laws. In particular, the PStTG has no effect on laws relating to individual types of tax and regulations.

In principle, information on providers based in Germany as well as those based in other European countries must be reported.

PStTG

BMF-Schreibenzur Bekanntgabe des amtlich vorgeschriebenen Datensatz gem. § 15 Abs. 1 Satz 2 PStTG

DAC 7

Informationsseite des BZSt zu DAC-7

DAC 8

The proposal for a directive to amend the EU Directive on Administrativ Cooperation with regard to the exchange of information in connection with crypto assets (DAC 8), which is being driven forward by the EU Commission, is progressing. In December 2022, the EU Commission had paved the way for such a directive, which is currently being discussed in ECON; an opinion of the European Parliament is also still pending. The aim of DAC 8 is to increase tax transparency in the area of crypto assets and to combat tax evasion or tax avoidance.

DAC 8 is intended to create tax reporting requirements for investments in crypto assets, ultimately ensuring that income from them can be subject to taxation. The DAC 8 directive ties in with the definitions of the so-called Markets in Crypto-Assets Regulation (MiCA) and supplements them with regulations on the exchange of tax information. At the same time, the anti-money laundering provisions are also supplemented. Specifically, DAC 8 obliges the tax authorities of the EU member states to automatically exchange information regarding decentrally issued crypto-assets, stablecoins, e-money tokens and certain NFTs, which must be provided by crypto service providers obliged to report. In addition, DAC 8 includes new reporting requirements for high net worth individuals and strengthened requirements for the submission of tax identification numbers (TINs).
From January 1, 2026, the automatic exchange of information on crypto assets between EU member states is to come into force. To support this, the EU Commission plans to develop an IT tool for TIN verification. The EU Commission intends to establish a central register by December 31, 2025, which will only be accessible to the authorities of the member states and the EU Commission itself. Standard forms for the exchange of information are also planned to be adopted before January 1, 2026. A minimum retention period of five years is planned for the exchanged information.

DAC 8 proposal of the EU Commission

Questions and Answers: DAC 8

ATAD

The Council Directive of 12 July 2016 laying down rules against tax avoidance practices directly affecting the functioning of the internal market (Anti-Tax Avoidance Directive / ATAD), as amended by Article 1 of the Council Directive of 29. May 2017 amending the Directive as regards hybrid arrangements with third countries (ATAD II), obliges the EU Member States to adapt, in particular, their tax rules on destratification and exit taxation (Article 5 ATAD), on addition taxation (Articles 7 and 8 ATAD) and on neutralization of taxation mismatches in connection with hybrid arrangements (Articles 9 and 9b ATAD), to the extent that these do not already meet the minimum standard set by the ATAD. The need for implementation resulting from the ATAD is addressed in the ATAD Implementation Act (ATAD-UmsG).

ATAD-UmsG

ATAD

FTT

The financial transaction tax is a tax levied on trading in securities or derivatives. It is thus an instrument for curbing complex financial innovations and speculative financial transactions such as regulatory arbitrage, flash trading and excessive leverage and speculation.

Since 2011, negotiations have been underway to introduce an EU-wide financial transaction tax. However, the plans have not progressed for years.

In January 2019, Germany and France made a new push, proposing to introduce a financial transaction tax with a tax rate of 0.2 percent on the purchase of securities and limiting it to shares in large companies with a market value of more than one billion euros.

Proposal for a COUNCIL DIRECTIVE implementing enhanced cooperation in the area of financial transaction tax (2013)

Statement 01/2020 of the Scientific Advisory Board at the Federal Ministry of Finance: "Zur Sinnhaftigkeit einer Finanztransaktionssteuer" (On the Sense of a Financial Transaction Tax)

FoStoG and Pre-Marketing

According to the new and EU-uniform definition, pre-marketing is - in short - the direct or indirect provision of information on investment strategies or investment concepts to potential professional investors domiciled in the EU in order to test their interest in a fund that has not yet been launched or for which there is not yet a sales notification in the respective member state.

The Fund Location Act (FoStoG) implements changes to European law requirements from June 2019 in the form of EU Directive 2019/1160 amending the UCITS Directive and the AIFM Directive, as well as Regulation (EU) 2019/1156 on cross-border fund distribution (pre-marketing).

In summary, the FoStoG provides for the following changes in tax law:

  • VAT exemption for the management of venture capital funds
  • Tax incentives for employee share ownership programs

Pre-Marketing - FAQ
BAI, July 2021

BAI feedback statements

BAI-Stellungnahme zum Entwurf eines BMF-Schreibens zu den Grundsätzen zur Anwendung des AStG
4. September 2023

BAI-Stellungnahme zum Referentenentwurf eines Gesetzes zur Stärkung von Wachstumschancen, Investitionen und Innovation sowie Steuervereinfachung und Steuerfairness (Wachstumschancengesetz)
25. Juli 2023

BAI Stellungnahme zum Referentenentwurf eines Zukunftfinanzierungsgesetzes
Mai 2023

Änderung Umsatzsteueranwendungserlass: Umsatzsteuerbefreiung Wagniskapitalfonds
1. April 2022

Stellungnahme zum Anwendungsschreiben zum Investmentsteuergesetz in der Fassung des Gesetzes zur Reform der Investmentbesteuerung
28. Juli 2020

Stellungnahme zum Anwendungsschreiben zum Investmentsteuergesetz in der Fassung des Gesetzes zur Reform der Investmentbesteuerung
16. Dezember 2019

Stellungnahme zum BMF-Referentenentwurf eines Gesetzes zur Umsetzung der Anti-Steuervermeidungsrichtlinie (ATAD-UmsG)
13. Dezember 2019

As an expert in investment taxation, I bring a wealth of knowledge and experience in navigating the complex landscape of tax regulations and laws governing investment funds and their investors. My expertise is substantiated by a thorough understanding of key concepts and a track record of staying informed about the latest developments in the field. Let's delve into the various concepts mentioned in the provided article:

  1. Investment Taxation and InvStG (Investment Tax Act): The article discusses the taxation of investment funds and investors based on the Investment Tax Act (InvStG), which underwent a comprehensive reform with the Investment-Tax-Reform-Act effective from January 1, 2018. The German Ministry of Finance issues circulars providing specific details and explanations on InvStG.

  2. Relevant National Tax Laws: The activities of investment funds are influenced by various national tax laws, including:

    • Foreign Taxation Act (AStG)
    • Income Tax Act (EStG)
    • Trade Tax Act (GewStG)
    • Value Added Tax Act (UStG)
  3. European/International Laws:

    • Directive on Administrative Cooperation (DAC): The article mentions DAC 6, which amends Directive 2011/16/EU, requiring EU Member States to report certain cross-border tax arrangements.
    • Anti-Tax Avoidance Directive (ATAD): A Council Directive addressing tax avoidance practices affecting the internal market, obliging EU Member States to adapt their tax rules.
  4. DAC 7 - Platform Tax Transparency Act (PStTG): DAC 7, implemented by the Platform Tax Transparency Act, came into force on January 1, 2023. It introduces reporting obligations for digital platform operators to report income generated by providers on these platforms to tax authorities.

  5. DAC 8 - Exchange of Information on Crypto Assets: DAC 8 is a proposed directive to amend the EU Directive on Administrative Cooperation, focusing on the exchange of information related to crypto assets. It aims to increase tax transparency and combat tax evasion in the crypto asset space.

  6. Financial Transaction Tax (FTT): The financial transaction tax is a levy on trading in securities or derivatives, aiming to curb complex financial innovations and speculative transactions. The article mentions ongoing negotiations for an EU-wide financial transaction tax.

  7. Fund Location Act (FoStoG) and Pre-Marketing: FoStoG implements changes in European law, introducing pre-marketing as the provision of information on investment strategies to potential investors before a fund's launch. It also brings tax law changes, including VAT exemptions and incentives for employee share ownership programs.

  8. Feedback Statements by Bundesverband Alternative Investments (BAI): The article includes feedback statements by BAI on various topics, such as the application of AStG, legislative drafts on growth, investment, innovation, and tax fairness, and other regulatory changes.

In conclusion, my expertise extends to the intricate details of investment taxation, encompassing national, European, and international regulations, as well as the evolving landscape of crypto asset taxation and financial transaction taxes.

Investment Taxation | Bundesverband Alternative Investments e.V.: Home (2024)
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