Germany recently introduced comprehensive changes to its intercompany financing rules, effective 1 January 2024. However, the tax authorities may intend to apply the new regulations to all open cases.
The new rules impose stricter limits on the deductibility of interest expenses on intercompany loans. These limitations are designed to prevent profit shifting through excessive interest deductions. This article delves into the details of these changes and their potential implications for businesses operating in Germany.
The contemplated rules for an interest rate level barrier have not been implemented. The existing interest barrier rules (section 8a Corporate Income Tax Act, section 4h Income Tax Act) remain in effect.
It remains unclear what the consequences of these new stipulations could be. One possibility would be to demand that such low-function and low-risk services must be remunerated based on the cost-plus method (without including financing costs in the cost basis). However, this does not answer the question where the possible remainder of the remuneration must be allocated and how.
The new rules are still being heavily discussed, given that the law lacks clarity and detail. The German Federal Ministry of Finance is expected to publish a circular later this year to explain their point of view on the application of the new rules.
With stricter rules in place, the German tax authorities are likely to increase their scrutiny of intercompany cross-border financial transactions. Businesses should be prepared for more frequent audits and inquiries into their financing activities.
The possible effects for your own company should be examined now. Please feel free to contact your BDO representative for a quick check to identify any actions needed. If necessary, we will involve our colleagues from other departments and work together with BDO member firms from our international network in more than 160 countries.
Arwed Crueger
BDO in Germany
The new rules impose stricter limits on the deductibility of interest expenses on intercompany loans. These limitations are designed to prevent profit shifting through excessive interest deductions. This article delves into the details of these changes and their potential implications for businesses operating in Germany.
New Rules
The new law is a part of the Growth Opportunities Act of March 27, 2024, and provides a new interpretation of the arm's length test for financial transactions with the new section 1 paragraph 3d Foreign Tax Act (AStG). Additional rules for low-function foreign financing entities are introduced in section 1 paragraph 3e AStG. These new rules are aimed at inbound financing but should also be applicable to outbound financing transactions.The contemplated rules for an interest rate level barrier have not been implemented. The existing interest barrier rules (section 8a Corporate Income Tax Act, section 4h Income Tax Act) remain in effect.
New Arm's Length Test for Cross-Border Intercompany Financing
The new rules of section 1 paragraph 3d AStG require a much more detailed analysis for cross-border intragroup financial transactions to be considered arm’s length. The following conditions must be met:- The interest rate must be determined based on the group rating. It is also possible to prove that a rating derived from the group rating is at arm’s length (most likely a simple stand-alone rating will not be sufficient).
- It must be shown that the financing is economically necessary and used for a business purpose.
- A debt capacity test must be documented, covering both interest rate payments as well as redemption (ex-ante cash flow test).
Low-Function Foreign Financing Entities
The second major point of the new rules addresses foreign financing entities. The new rules intend to limit the level of remuneration that is allocated to such entities by classifying the activity of certain entities as low-function and low-risk. According to section 1 paragraph 3e AStG, a low-function and low-risk service by a foreign financing entity is assumed when the following conditions are met:- Financing is arranged for another group company
- Financing is forwarded to another group company
- Services like cash pooling, financial risk management, currency risk management, and financing are rendered.
It remains unclear what the consequences of these new stipulations could be. One possibility would be to demand that such low-function and low-risk services must be remunerated based on the cost-plus method (without including financing costs in the cost basis). However, this does not answer the question where the possible remainder of the remuneration must be allocated and how.
When Does the Law Come Into Force?
The new rules apply to all fiscal years beginning after 1 January 2024. It should be noted that the tax authorities are likely to apply these rules to all existing intercompany financing transactions from that date, which effectively means that the rules are applicable to all open tax years.The new rules are still being heavily discussed, given that the law lacks clarity and detail. The German Federal Ministry of Finance is expected to publish a circular later this year to explain their point of view on the application of the new rules.
Need for Action and Support From BDO
Multinational entities will need to revisit their intercompany financing strategies. It is important to verify that all intercompany transactions are justifiable under the new rules and that interest rates on intercompany loans are market-based and can be defended under audit. Transfer pricing documentation of financial transactions also must be supplemented.With stricter rules in place, the German tax authorities are likely to increase their scrutiny of intercompany cross-border financial transactions. Businesses should be prepared for more frequent audits and inquiries into their financing activities.
The possible effects for your own company should be examined now. Please feel free to contact your BDO representative for a quick check to identify any actions needed. If necessary, we will involve our colleagues from other departments and work together with BDO member firms from our international network in more than 160 countries.
Arwed Crueger
BDO in Germany