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Germany - Income Tax

Germany - Income Tax

Taxation of international executives

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Related content

Tax returns and compliance

Tax rates

Residence rules

Termination of residence

Economic employer approach

Types of taxable compensation

Tax-exempt income

Expatriate concessions

Salary earned from working abroad

Taxation of investment income and capital gains

Additional capital gains tax (CGT) issues and exceptions

General deductions from income

Tax reimbursement methods

Calculation of estimates/prepayments/withholding

General tax credits

Sample tax calculation

All information contained in this document is summarized by KPMG AG Wirtschaftsprüfungsgesellschafti, the German member firm affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity, based on the German Income Tax Law  2019 (§§ 1, 2, 3, 8, 9, 9a, 10, 10b, 10c, 17, 19, 20, 23, 32, 32a, 32d, 33a, 37, 38, 39b, 49, 50 EStG); Abgabenordenung (§§ 8, 9, 149, 152, 233a, 238, 240 AO); Bundesumzugskostengesetz (BUKG), Auslandsumzugskostenverordnung (AUV), Bundesversicherungsanstalt für Angestellte (BfA); Inheritance and Gift Tax Act (§ 19 ErbStG); Debatin/Wassermeyer, Doppelbesteuerung, Kommentar, Stand  September 2018; 143 EL) Guidance issued by the Federal Ministry of Finance on Taxation of Employment Income According to the Double Tax Treaties on 03 May 2018).

Tax returns and compliance

When are tax returns due? That is, what is the tax return due date?

For Tax year 2019:

31 July 2020 (for income tax). However, if prepared by a professional tax agent/tax consultant 28 February 2021

What is the tax year-end?

31 December.

What are the compliance requirements for tax returns in Germany?

Residents

In general, income tax is assessed by calendar year after filing an individual tax return. Married couples can file tax returns jointly or as separate individuals.

Returns for the preceding calendar year (year 2019) must be filed with the local tax office by 31 July. An extension until 28 February of the subsequent year will be granted without application where a professional tax adviser prepares the return. A further extension may be available by special request. However, the tax authorities may request, on an individual basis, that the return be filed before these dates.

If the tax return is not filed on time, there will be late filing penalties. These amount to 0.25 percent of the assessed tax (not the underpayment) per month of delay (unless the tax assessment results in a refund to the taxpayer).

If the employer is a German company or a foreign enterprise with a permanent establishment or a representative in Germany, the employer is legally obliged to withhold taxes from an employee’s salary and to remit the taxes to the tax office monthly.

A German entity is also obliged to withhold wage taxes from an employee’s salary that is paid abroad if the salary costs are economically borne by the German entity (“economic employer approach”). The withholding requirement also arises in scenarios where salary costs should have been recharged to Germany under the arm`s length principle, but where this obligation has been deliberately “ignored”.

The income tax is not payable at the time the tax return is filed. The tax authorities will issue a final tax assessment notice once they have processed the return. Any balance due is payable within 1 month after receipt of the tax assessment notice. Interest is charged or credited on final payments if the tax assessment notice is not issued within 15 months after the end of the respective calendar year. The applicable rate is 0.5 percent for each full month after the 15th month. Penalties for late payment after receipt of the tax assessment notice are 1 percent per month of the unpaid amount.

The tax office can assess quarterly prepayments based on the prior year’s tax or on estimates of income not subject to withholding tax. These prepayments are due quarterly on 10 March, 10 June, 10 September, and 10 December.

Non-residents

Non-residents are subject to tax on certain categories of income from German sources under the concept of limited tax liability. If the income from employment is subject to wage tax withholding, the tax obligations are fulfilled with the withholdings and in many cases no German tax return needs to be filed or can`t even be filed at all (exceptions exist for EU nationals). In other words, the payroll withholdings become in many cases final. Hence, it is of great importance that the payroll tax collected by the employer is correct.

Tax rates

What are the current income tax rates for residents and non-residents in Germany? Residents

Income tax is calculated by applying a progressive tax rate schedule to taxable income as follows:

Income tax table for 2020

Taxable income bracket Taxable income bracket Tax rate on income in bracket

From EUR

To EUR

Percent

0

9,408

0

0

18,816

0*

9,408

57,051

14-42

18,816

114,103

14-42*

57,052

270,500

42

114,103

541,000

42*

270,501

No limit

45

541,001

No limit

45*

*married couple filing a joint return

In addition to the income tax rates indicated above, the following taxes and surcharges are additionally levied on all types of income:

  • solidarity surcharge: 5.5 percent of the income tax
  • church tax: 8 or 9 percent of the income tax – church tax is only levied if the taxpayer is a member of a church that is recognized for church tax purposes

Non-residents

Resident tax rates also apply to non-residents, but the zero percent brackets shown earlier is available only to non-resident employees. Non-residents are generally not allowed to file as married persons (however special EU rules exist).

Residence rules

For the purposes of taxation, how is an individual defined as a resident of Germany?

An individual is considered resident if they maintain a domicile or habitual place of abode in Germany. A domicile is a home or dwelling owned by or rented to the taxpayer who has full control over that property. Domicile is a question of fact and is not determined by the intention of the taxpayer.

The habitual place of abode is established when an individual is physically present in Germany on a long-term basis. Long-term is defined as more than 6 months.

Is there a de minimus number of days rule when it comes to residency start and end date? For example, a taxpayer can’t come back to the host country/jurisdiction for more than 10 days after their assignment is over and they repatriate.

No. The habitual place of abode is established when the individual is physically present in Germany for a continuous timeframe of more than 6 months. A continuous abode is established and maintained if the interruptions are for a short period only (such as holidays, journey home, and business travel), so that the stay is still regarded as one continuous stay.

What if the assignee enters the country/territory before their assignment begins?

For determining the habitual abode, the continuous period of 6 months will be considered as explained above. The duration of the physical stay is decisive.

Termination of residence

Are there any tax compliance requirements when leaving Germany?

Before leaving Germany, an individual must inform the registration office (Einwohnermeldeamt) in the town where they lived and they should verify they have a current passport which is valid until the end of their expected foreign stay. No exit requirements exist for tax purposes, i.e. no declaration has to be filed with the tax office before leaving the country.

There are no special payment procedures on termination of residence, and no tax clearance is required. After leaving Germany, the employee is no longer subject to unlimited German taxation, but may be taxed as a non-resident on income from German sources, such as on bonus payments for the assignment period.

There is no special filing requirement on termination of residence. In the year following the termination of residence, the taxpayer has to file an income tax return for the prior year under the normal rules covering the residence period and the period after the move during the tax year.

If the taxpayer receives income from German sources as a non-resident in later years, they must file an annual tax return covering this income, unless it was subject to withholding tax.

What if the assignee comes back for a trip after residency has terminated?

If the journey is actually in connection with the previous stay, these days will also be added to the previous stay for the determination of the habitual place of abode.

For treaty purposes, the German tax authorities have officially adopted the Organisation for Economic Co-operation and Development (OECD)-approach on counting the 183 days in cases of changing treaty residence.

Communication between immigration and taxation authorities

Do the immigration authorities in Germany provide information to the local taxation authorities regarding when a person enters or leaves Germany?

No. But this might change in the future.

Filing requirements

Will an assignee have a filing requirement in the host country/jurisdiction after they leave the country/jurisdiction and repatriate?

There is no special filing requirement on termination of residence but they have to file a German income tax return for the tax year of departure.

Economic employer approach

Do the taxation authorities in Germany adopt the economic employer approach1 to interpreting Article 15 of the OECD treaty? If no, are the taxation authorities in Germany considering the adoption of this interpretation of economic employer in the future?

Yes.

The economic employer approach is also applied to scenarios where the cost recharge is required under the arm`s length principle but has deliberately been ignored.

De minimis number of days?

Are there a De minimus number of days before the local taxation authorities will apply the economic employer approach? If yes, what is the De minimus number of days?

No. However, if an assignee works for the host company for only 3 months or less, there is a chance to argue that the host company should not be regarded as the individual's economic employer, unless the individual was fully integrated in the host company's business operations during this time. However, the tax authorities clarified that this is not and should not be seen as a firm De minimus regulation. Hence, all depends on facts and circumstances.

Types of taxable compensation

What categories are subject to income tax in general situations?

As a rule, it can be stated that all types of remuneration and benefits received by an employee for services rendered constitute taxable income. These include, but are not limited to, the items below:

  • reimbursements/payments of foreign and/or home country/jurisdiction taxes
  • reimbursements/payments of school tuition fees reimbursements/payments of tax return preparation fees
  • reimbursements/payments of home leave costs
  • cost-of-living allowances
  • expatriate premiums
  • housing allowances and the imputed value of housing provided directly by the employer
  • benefits-in-kind generally form part of taxable compensation

1. Certain benefits, however, are subject to a favorable method of taxation, including company cars. Where a company car is provided, the private use of the car represents a fringe benefit to the employee, which must be included in the monthly salary calculation. The taxable benefit may be assessed by calculating one percent per month of the list price (gross amount) of the new car plus an additional amount for commuting.

  • incentive compensation in certain circumstances

1. If Foreign Service premiums or bonuses are paid as inducements to accept an assignment before the tax year in which the individual arrives in Germany and becomes a resident, such payments are taxable at non-resident rates. If the foreign premiums or bonuses are paid in the same calendar year in which the individual becomes resident, these payments are taxable at resident rates together with other income earned in the year.

2. Stock option plans or other kinds of equity compensation have become common features of German compensation schemes. German income tax law does not recognize the granting as a taxable event. Instead, the exercise of a stock option or receipt of other equity compensation generates ordinary income from employment. The taxable value of stock options is the difference between the fair market value at the date of exercise of the shares and the option price. If a tax treaty applies, sourcing is determined in the timespan “grant to vest”. A favorable tax rate may apply on such income (one-fifth method).

Intra-group statutory directors

Will a non-resident of Germany who, as part of their employment within a group company, is also appointed as a statutory director (i.e. member of the Board of Directors in a group company situated in Germany trigger a personal tax liability in Germany even though no separate director's fee/remuneration is paid for their duties as a board member?

Generally, yes. The German tax authorities explicitly state that – should no separate remuneration for that (operational) management role be agreed and paid for – they will allocate a reasonable amount to that position on an estimated basis. Hence, it is clearly advisable to clarify and properly document this issue upfront.

a)   Will the taxation be triggered irrespective of whether or not the board member is physically present at the board meetings in Germany?

Yes. The full remuneration received for an (operational) management position (Managing Director/Board Member/Proxy holder – “Geschäftsführer/Vorstand/Prokurist”) of a German entity is subject to German taxation. It does not matter where the MD etc. performs their duties physically, unless a tax treaty provides otherwise.

b)  Will the answer be different if the cost directly or indirectly is charged to/allocated to the company situated in Germany (i.e. as a general management fee where the duties rendered as a board member is included)?

In theory, the tax authorities recognize that there might be scenarios where a foreign entity renders a real management service to the German group company. However, the authorities explicitly instruct their inspectors to then thoroughly check whether - by rendering these management services – the foreign entity itself will create a taxable PE in Germany. Should a Germany PE of the foreign entity be affirmed by this check, both German business taxes as well as payroll/income taxes will be due.

c)   In the case that a tax liability is triggered, how will the taxable income be determined?

The full remuneration for the MD position will be subject to German tax unless a tax treaty otherwise stipulates. Withholding obligations should be observed.

Note: German Corporate Law strictly differentiates between operational management positions as described above (MD etc.) and a position at a company`s “Supervisory Board” (non-operational role/pure overseeing and controlling role).

Non-residents being a member of a “Supervisory Board” (Aufsichtsrat/Beirat) are also subject to German withholdings. In these cases, a 30 percent flat taxation (plus 5.5 percent solidarity surtax) is imposed on all types of remuneration paid, including travel expenses.

Tax-exempt income

Are there any areas of income that are exempt from taxation in Germany? If so, please provide a general definition of these areas.

The following categories of income are exempt from tax:

  • certain payments from health or accident insurance
  • certain social security benefits including unemployment benefits and maternity grants
  • kindergarten fees if certain conditions are met.

In case a secondary household is established in Germany for business purposes, the following payments are exempt under certain circumstances:

  • home trips (once per week)
  • meal allowances up to certain amounts and subject to certain time limits
  • rent at the place of work (actual costs but limited to EUR - 1,000 per month).

If certain other conditions are met, rental cost incurred for the employee, meal allowances and commuting expenses can be reimbursed tax-free, in general.

Expatriate concessions

Are there any concessions made for expatriates in Germany?

German income tax law does not provide for special deductions or tax-free expatriate premiums. The German Constitution stipulates that German nationals and foreigners must be treated equally for tax purposes.

Salary earned from working abroad

Is salary earned from working abroad taxed in Germany? If so, how?

The taxable salary of residents cannot be reduced by allocating income to foreign business trips except where exclusions are available under tax treaties. Such exclusions generally require a foreign employer or a permanent establishment in the other country/jurisdiction. Split payrolls are possible.

In the absence of a double tax treaty or depending on the provisions of the applicable treaty, a managing director/board member/”Prokurist” of a German company may be subject to German income tax even if they are a non-resident of Germany and is not physically present in Germany while performing the services (see above explanations).

Further, non-residents who have a German employer and work outside Germany might become taxable in Germany if their “work results” are made available to the German employer (for example by providing marketing studies/opinions/data bases etc. to them). However, where a tax treaty applies, this domestic tax provision will be overruled.

Taxation of investment income and capital gains

Are investment income and capital gains taxed in Germany? If so, how?

Worldwide investment income is subject to German income tax at 25 percent plus solidarity surcharge plus church tax (where applicable). The tax is generally withheld at the source.

The tax withheld is final unless one of the following applies.

  • The taxpayer's individual income tax rate is lower than 25 percent.
  • Not all investment income was subject to withholding (such as foreign investment income).
  • Church tax was not considered in the withholding although applicable.

A standard annual deduction of EUR801/EUR1,602 (single/married) is offset against the taxable part of worldwide investment income. Investment income includes interest, dividends and gains from the sale of shares.

Special rules apply to shares purchased prior to 1 January 2009. Additionally, specific complex rules are in place for mutual investment funds.

Gains derived by an individual from the sale of non-business property other than shares are not subject to tax, except in cases where the asset has not been held for the required holding period (generally 1 year) or where certain thresholds are exceeded. For real property, tax will be due on the gain if on the date of sale the property has been held 10 years or less (exemptions exist for the sale of the taxpayer's residence). Even if the asset has not been held for the required holding periods mentioned earlier, the gain will be tax-free if all gains in a calendar year are less than EUR600 in total.

Dividends, interest, and rental income

See earlier for taxation of dividends and interest.

Rental income is taxable unless exempt under a double tax treaty. Gains from stock option exercises.

Residency Status Taxable at
 

Grant

Vest

Exercise

Resident

N

N

Y

Non-resident

N

N

Y

Note: Sourcing under a tax treaty follows the “grant to vest” method.

Foreign exchange gains and losses

Depending on certain circumstances, foreign exchange gains will be treated as a “speculative” transaction, which is taxable.

Capital losses

The use of capital losses for tax purposes is subject to various restrictions and limitations.

Gifts

Inheritance and gift tax is levied on transfers of property by reason of death, gifts during lifetime, and transfers for certain specified purposes (gift tax), as well as on the net worth of certain family foundations and trusts. The tax is generally assessed on the net worth of the property transferred after deducting certain exemptions as well as personal exemptions depending on the family relationship. Taxable transfers of property are subject to tax at graduated rates (ranging between 7 percent and 50 percent).

Additional capital gains tax (CGT) issues and exceptions

Are there additional capital gains tax (CGT) issues in Germany? If so, please discuss?

See above explanations for investment income and capital gains

Are there capital gains tax exceptions in Germany? If so, please discuss? Pre-CGT Assets

No.

Deemed disposal and acquisition

Generally, no. However, special rules apply if a taxpayer has been holding one percent or more of the shares in a corporation/legal entity at any time during a 5 year period prior to leaving Germany or in scenarios where Germany loses its taxation right under a tax treaty (for example by shifting a taxpayer`s center of vital interests (Art. 4 para 2 - tie breaker rule) to a foreign country).

General deductions from income

What are the general deductions from income allowed in Germany?

The following are standard deductions for each of the specified types of income:

 

2020 EUR

Standard annual investment deduction

 

Single

801

Married

1.602

Standard investment expense deduction

 

Standard employment deduction

1.000

The following are standard deductions for each of the specified types of income:

  2020 EUR
Standard special expense deduction  
Single 36
Married 72
Special non-resident deduction 0

Furthermore, a series of non-income related deductions are granted. The most important are:

  • standard deductions apply (see earlier charts)
  • payments to public, mandatory pension insurance (cap)
  • payments to public or private health and nursing insurances for basic insurance coverage
  • expenses for the taxpayer's professional education
  • thirty percent of contributions to private schools up to a maximum amount of EUR5,000 (on certain conditions)
  • church taxes
  • charitable contributions to German charities and charitable activities abroad if certain conditions are met (limited to the lesser of the amount incurred or 20 percent of income from different classes)
  • alimony payments to the ex-spouse (limited to the lesser of the amount incurred or EUR13,805), if the payments are taxed at the level of the recipient
  • under special circumstances, further deductions are available. For example certain education expenses, supporting expenses, and deductions for disabled individuals as well as additional insurance contributions.

Child-related deductions

For the first and second child, a monthly benefit of EUR204 (2020) is paid. The monthly benefit amounts to EUR210 for the third child and EUR235 per child from the fourth child onwards. Payment is dependent on certain conditions being met. If the taxpayer does not qualify for the monthly child benefit or if the tax savings from the following exemptions exceed the child benefit, then these deductions can be claimed instead on the annual tax return for single/married taxpayers.

Age EUR

0 - 17 years

EUR3,906/7,812

18 - 25 years

EUR3,906/7,812 if attending school/university/vocational training, plus EUR462/924 if not living at home

Parents can offset two thirds (up to EUR4,000) of the expenses for childcare per child per year if the child is under age 14, and for disabled children between age 14 and 25.

Other deductions

Alimony payments to a divorced or to a separated spouse who is a resident of Germany, another EU Member State or certain treaty countries/jurisdictions can be deducted as personal expenses up to a maximum amount of EUR13,805 per year if certain requirements are met. Additionally, basic health and nursing contributions which are paid for the supported person are deductible. The alimony payment constitutes taxable income to the recipient. Alimony payments to a divorced or to a separated spouse who is not a resident of Germany can be deducted under certain conditions up to a maximum amount of EUR9,408 (2020) per year, if this is applied for. If the other annual income of the recipient exceeds EUR624, the deductible amount is reduced by the excess over EUR624.

Expenses incurred in carrying out employment can be deducted from gross salary. These expenses include commuting expenses, expenses for tools or other work equipment, certain membership dues, and certain away-from-home expenses. The deduction is generally not limited. If the employee does not claim higher itemized business expenses, a standard annual deduction for income-related expenses of EUR1,000 is granted.

If the employee uses their private car for business travel and is not reimbursed by the employer, they can claim as a business expense a flat amount for business mileage (presently EUR0.30 per km for each km driven).

Church taxes paid under German church tax codes are deductible for income tax purposes in the year of payment.

Tax reimbursement methods

What are the tax reimbursement methods generally used by employers in Germany?

German employers often conclude net salary agreements with their assignees from abroad. Consequently, the German tax allocable to company income is borne by the employer and tax refunds allocable to company income are also due to the employer.

Calculation of estimates/prepayments/withholding

How are estimates/prepayments/withholding of tax handled in Germany? For example, pay-as-you-earn (PAYE), pay-as-you-go (PAYG), and so on.

Wage tax needs to be withheld on salary by the employer, whereas prepayments can be assessed by the authorities for all other categories of income.

When are estimates/prepayments/withholding of tax due in Germany? For example: monthly, annually, both, and so on.

The wage tax is due monthly and is arranged by the employer. If applicable, tax prepayments are due on a quarterly basis and need to be paid by the individual.

General tax credits

What are the general tax credits that may be claimed in Germany?

Please list below.

The withholding tax from German investment income (interest, dividends, gains from shares sold) will be credited against the German tax on investment income if investment income is included in the assessment. The foreign withholding tax on investment income (if taxable in Germany) can also be credited against the German tax on investment income. The credit is limited to the percentage allowed by the applicable double tax treaty.

Sample tax calculation

This calculation assumes a married taxpayer resident in Germany with two children whose 3- year assignment begins 1 January 2019 and ends 31 December 2021. The taxpayer’s base salary is 100,000 US dollars (USD) and the calculation covers 3 years.

  2019 USD 2020 USD 2021 USD
Salary 100,000 100,000 100,000
Bonus 20,000 20,000 20,000
Cost-of-living allowance 10,000 10,000 10,000
Housing allowance 12,000 12,000 12,000
Company car4 6,000 6,000 6,000
Moving expense reimbursement 20,000 0 20,000
Home leave 0 5,000 0
Education allowance 3,000 3,000 3,000

Exchange rate used for calculation: USD1.00 = EUR0.9068.

Other assumptions

  • The calculation has been generated based on KPMG LINK Cost Projector, Version 2019.5 (calculations are based on 2020 rates as most recent rates incorporated into KPMG LINK Cost Projector).
  • All earned income is attributable to local sources.
  • All allowances are paid gross.
  • Bonuses are paid at the end of each tax year, and accrue evenly throughout the year.
  • The employee is deemed resident throughout the assignment.
  • Tax treaties and totalization agreements are ignored for the purpose of this calculation (i.e. German social security contributions do apply).
  • The employee is not subject to German church tax.
  • The housing allowance and the company car allowance are provided in cash.
  • Only standard deductions have been considered.
  • All moving expenses can be proven by receipt/invoices.

Calculation of taxable income

Year-ended

2019

EUR

2020

EUR

2021

EUR

Days in Germany during year 365 365 365
Earned income subject to income tax      
Salary 90,680 90,680 90,680
Bonus 18,136 18,136 18,136
Cost-of-living allowance 9,068   9,068   9,068  
Housing allowance 10,882 10,882 10,882
Company car1 5,441 5,441 5,441
Moving expense reimbursement 0 0 0
Home leave 0 4,534  0
Education allowance 2,720 2,720 2,720
Total income 136,927 141,461  136,927
Deductions      
Employment deduction 1,000 1,000 1,000
Social insurance deduction -10,564  -11,257  -11,565
Special expenses -72 -72 -72
Child allowance deduction -15,240   -15,624 -15,624
Total taxable income 110,051   113,508  108,666 

Calculation of tax liability

  2019EUR 2020EUR 2021EUR
Taxable income as above 110,051 113,508 108,666
Income tax 28,664 29,746 27,743
Solidarity surcharge 1,576 1,636 1,526
Child subsidy (back added*) 4,776 4,896 4,896
Less:      
Domestic tax rebates (dependent spouse rebate) 0 0 0
Foreign tax credits* 0 0 0
Total German tax 35,016 36,278 34,165

*In many cases assignees are entitled to receive child subsidy (cash payments) from the authorities. To eliminate a double benefit/advantage by claiming on top the child allowance deduction in the tax return, the child subsidy must be paid back together with the income tax.

Footnote

1. Note that an additional taxable benefit for the use of the company car for commuting between the home and the office may arise. The amount depends on the distance between the taxpayer's home and office.

Disclaimer

All information contained in this publication is summarized by KPMG AG Wirtschaftsprüfungsgesellschaft, the German member firm affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity, based on the German Income Tax Law 2019 (§§ 1, 2, 3, 8, 9, 9a, 10, 10b, 10c, 17, 19, 20, 23, 32, 32a, 32b, 32d, 33a, 37, 38, 39b, 49, 50 EStG); Abgabenordenung (§§ 8, 9, 149, 152, 233a, 238, 240 AO); Bundesumzugskostengesetz (BUKG), Auslandsumzugskostenverordnung (AUV), Bundesversicherungsanstalt für Angestellte (BfA); Inheritance and Gift Tax Act (§ 19 ErbStG); Debatin/Wassermeyer, Doppelbesteuerung, Kommentar, Stand October 2019; 147 EL) Guidance issued by the Federal Ministry of Finance on Taxation of Employment Income According to the Double Tax Treaties on 03 May 2018).

Copyright

© 2020 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm vis-à-vis third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.

Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm vis-à-vis third parties, nor does KPMG International have any such authority to obligate or bind any member firm.

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