Taxation of international executives
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).
When are tax returns due? That is, what is the tax return due date?
For Tax year 2018:
31 July 2019 (for income tax). However, if prepared by a professional tax agent/tax consultant 28 February 2020
What is the tax year-end?
What are the compliance requirements for tax returns in Germany?
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 2018) 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 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 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 no German tax return needs to be filed. In other words, the payroll withholdings become final. Hence, it is of great importance that the payroll tax collected by the employer is correct.
What are the current income tax rates for residents and non-residents in Germany?
Income tax is calculated by applying a progressive tax rate schedule to taxable income as follows:
Income tax table for 2019
|Taxable income bracket||Taxable income bracket||Tax rate on income in bracket|
|From EUR||To EUR||Percent|
*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:
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).
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/territory 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.
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 now 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.
Will an assignee have a filing requirement in the host country/territory after they leave the country/territory 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.
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?
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.
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:
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.
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.
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:
In case a secondary household is established in Germany for business purposes, the following payments are exempt under certain circumstances:
If certain other conditions are met, rental cost incurred for the employee, meal allowances and commuting expenses can be reimbursed tax-free, in general.
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.
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/territory. 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.
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.
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 rules are in place for mutual investment funds.
Special rules are in place for mutual funds which do not fulfil the registration / publication requirements in Germany.
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 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|
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.
The use of capital losses for tax purposes is subject to various restrictions and limitations.
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).
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?
Deemed disposal and acquisition
No. However, special rules apply if a taxpayer holds one percent or more of the shares in a corporation.
What are the general deductions from income allowed in Germany?
The following are standard deductions for each of the specified types of income:
|Standard annual investment deduction|
|Standard investment expense deduction|
|Standard employment deduction||1,000|
The following are standard deductions for each of the specified types of income:
|Standard special expense deduction|
|Special non-resident deduction||0|
Furthermore, a series of non-income related deductions are granted. The most important are:
|0 - 17 years||EUR3,810/7,620|
|18 - 25 years||EUR3,810/7,620 if attending school/vocational training, plus EUR462/924 if not living at home
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.
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.
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.
This calculation assumes a married taxpayer resident in Germany with two children whose 3-year assignment begins 1 January 2018 and ends 31 December 2020. The taxpayer’s base salary is USD 100,000 and the calculation covers 3 years.
|2018 USD||2019 USD||2020 USD|
|Moving expense reimbursement||20,000||0||20,000|
Exchange rate used for calculation: USD1.00 = EUR0.8809.
Calculation of taxable income
|Days in Germany during year||365||365||366|
|Earned income subject to income tax|
|Moving expense reimbursement||0||0||0|
|Social insurance deduction||-10.131||--10.564
|Child allowance deduction||-14.856||-15.240||-15.240|
|Total taxable income||106.957||106.957||106.957|
Calculation of tax liability
|Taxable income as above||106.957||110.554||105.841|
|Child subsidy (back added*)||4.656||4.776||4.896|
|Domestic tax rebates (dependent spouse rebate)||0||0||0|
|Foreign tax credits*||0||0||0|
|Total German tax||33.867||35.233||33.308|
*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.
1Note 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.
Is there a requirement to declare/report offshore assets (e.g., foreign financial accounts, securities) to the country’s fiscal or banking authorities?
German resident taxpayers are taxable with their worldwide income. Tax residents have generally to declare their worldwide investment income, including income generated by investments in foreign (i.e. non-German) entities or investment vehicles such as trusts, partnerships, funds and the like. Treaty provisions might provide tax relief, if the taxpayer remains resident in another country/territory based on Article 4 of the OECD Model Convention.
The following should be noticed:
Furthermore, German residents are obliged to separately report their participation and the acquisition of foreign companies/partnerships/vehicles if
Last but not least there is an obligation to inform the German tax authorities whether the taxpayer maintains “business and/or financial relations with foreign jurisdictions” in the German income tax return itself (“yes” or “no” question). This information shall enable the authorities to follow up.
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