Federal Ministry of Finance publishes letter of guidance on the application of rules regarding reportable cross-border arrangements
The publication of the letter of guidance dated 29 March 2021 is largely an affirmation of the views taken in the draft dated 14 July 2020.
With its Act on the "Implementation of Reporting Obligations of Cross-Border Arrangements" dated 21 December 2019, Germany has complied with its duty to implement EU Council Directive 2018/822 of 25 May 2018.
After some initial back and forth on an extension of the deadlines regarding the reporting obligations due to the Corona Pandemic, which were finally abandoned, the application of the reporting obligations started as scheduled, on 1 July 2020. The new legislation had already caused heated discussions prior to implementation due to its broad scope.
The letter of guidance by the FMF was eagerly awaited as to shed some light on the administration's interpretation of the new legislation. In the past year the FMF had circulated multiple drafts of the letter of guidance, the latest on 14 July 2020. Now, almost nine months later, the FMF has finally published the final letter of guidance on 29 March 2021. The changes in comparison to the latest draft of 14 July 2020 are, however, in most part of editorial nature. This is also the case with regard to the so called "White List" in the Annex which contains a conclusive listing of cases which are deemed not to constitute a tax benefit as such.
Criticism of the reporting obligations as a bureaucratic monster that is difficult to manage is thus unlikely to abate even after the publication of the FMF letter of guidance.
The publication of the final letter of guidance only provides for very limited additional insight into the fiscal authorities' perspective in comparison to the last draft circulated on 14 July 2020. However, the publication is nevertheless to be welcomed, as the administration is for now bound by the views stated in the letter and in particular the White List.
Dr Marion Frotscher
Lawyer, Tax Advisor, M.I.Tax
Lawyer; Tax Advisor