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For tax arrears or refunds in connection with the assessment of income tax, corporate income tax, trade tax and value added tax, the so-called full interest is eligible (Section 233a of the German Fiscal Code). Interest regularly begins to accrue after a 15-month grace period following the end of the assessment period. The statutory interest rate is 0.5% for each full month, i.e. 6% per annum (Section 238 of the German Tax Code). However, in view of the ongoing low-interest phase, the German Federal Fiscal Court considers the level of the interest rate to be unconstitutional on a regular basis from 2012.

At the Federal Constitutional Court

two proceedings are already pending concerning interest assessments for the years from 2010 and 2012 respectively. Insofar as the tax authorities determine tax interest, this is now only done on a provisional basis. This is intended to avoid corresponding objection procedures.

Following three rulings by the Federal Fiscal Court

the tax authorities have now adjusted their view. Accordingly, the loss of a loan by the shareholder, e.g. due to the insolvency of the GmbH, does not in principle lead to subsequent acquisition costs of the investment. The loan loss would therefore be regarded as income-related expenses in the case of investment income and could only be offset against other positive income from investment assets.

However, for a transitional period, the tax authorities apply a special rule. In the case of loans previously considered equity-substituting that were granted on or before September 27, 2017, a loan loss may also be treated as a subsequent acquisition cost of the investment.

If the Federal Constitutional Court finds the interest rate to be unconstitutional, the provisional interest assessments (tax interest) will be amended accordingly ex officio; in the case of refund interest, this could possibly be disadvantageous for the persons concerned.


More questions? Contact us.

(For further comments, information and examples, please refer to our information letter 07/2019).

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Neumann & Walczak – tax consulting company GmbH – Robert-Bosch-Strasse 1 – 59439 Holzwickede

Neumann Walczak & Partner Tax Consultant and Lawyer – Partnership –
Robert-Bosch-Strasse 1 – 59439 Holzwickede

Website: www.neumann-walczak.de – E-mail: info@neumann-walczak.de

Phone: (0049) 02301 – 91 291 0 – Fax: (0049) 02301 – 91 291 21