Global forum on transparency and exchange of information for tax purposes peer reviews: Germany 2013 : combined: phase 1 + phase 2, incorporating phase 2 ratings.

103 Pages·2013·1.652 MB·English

by  OECD

Global Forum on Transparency and Exchange of Information GLOBAL FORUM ON TRANSPARENCY AND EXCHANGE
for Tax Purposes
OF INFORMATION FOR TAX PURPOSES
PEER REVIEWS, COMBINED: PHASE 1 + PHASE 2,
incorporating Phase 2 ratings – GERMANY
Peer Review Report
The Global Forum on Transparency and Exchange of Information for Tax Purposes is the
multilateral framework within which work in the area of tax transparency and exchange of
information is carried out by 120 jurisdictions, which participate in the Global Forum on an Combined: Phase 1 + Phase 2,
equal footing.
The Global Forum is charged with in-depth monitoring and peer review of the implementation incorporating Phase 2 ratings
of the international standards of transparency and exchange of information for tax purposes.
These standards are primarily refl ected in the 2002 OECD Model Agreement on Exchange
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of Information on Tax Matters and its commentary, and in Article 26 of the OECD Model e
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Tax Convention on Income and on Capital and its commentary as updated in 2004. The r R GERMANY
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standards have also been incorporated into the UN Model Tax Convention. v
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The standards provide for international exchange on request of foreseeably relevant R
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information for the administration or enforcement of the domestic tax laws of a requesting p
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party. Fishing expeditions are not authorised but all foreseeably relevant information must be rt C
provided, including bank information and information held by fi duciaries, regardless of the o
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existence of a domestic tax interest or the application of a dual criminality standard. b
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All members of the Global Forum, as well as jurisdictions identifi ed by the Global Forum d
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as relevant to its work, are being reviewed. This process is undertaken in two phases. h
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Phase 1 reviews assess the quality of a jurisdiction’s legal and regulatory framework for se
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the exchange of information, while Phase 2 reviews look at the practical implementation of +
that framework. Some Global Forum members are undergoing combined – Phase 1 and P
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Phase 2 – reviews. The Global Forum has also put in place a process for supplementary as
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reports to follow-up on recommendations, as well as for the ongoing monitoring of 2
jurisdictions following the conclusion of a review. The ultimate goal is to help jurisdictions , in
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to effectively implement the international standards of transparency and exchange of orp
information for tax purposes. ora
All review reports are published once approved by the Global Forum and they thus represent tin
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agreed Global Forum reports. P
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For more information on the work of the Global Forum on Transparency and Exchange of se
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Information for Tax Purposes, and for copies of the published review reports, please refer to ra
www.oecd.org/tax/transparency and www.eoi-tax.org. tin
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Consult this publication on line at http://dx.doi.org/10.1787/9789264205642-en. G
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This work is published on the OECD iLibrary, which gathers all OECD books, periodicals and M
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statistical databases. N
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Visit www.oecd-ilibrary.org for more information.
ISBN 978-92-64-20563-5
9HSTCQE*cafgdf+
23 2013 51 1 P

Global Forum
on Transparency
and Exchange
of Information for Tax
Purposes Peer Reviews:
Germany 2013
COMBINED: PHASE 1 + PHASE 2,
INCORPORATING PHASE 2 RATINGS
November 2013
(reflecting the legal and regulatory framework
as at October 2010)
ThisworkispublishedontheresponsibilityoftheSecretary-GeneraloftheOECD.
Theopinionsexpressedandargumentsemployedhereindonotnecessarilyreflect
theofficialviewsoftheOECDorofthegovernmentsofitsmembercountriesor
thoseoftheGlobalForumonTransparencyandExchangeofInformationforTax
Purposes.
Thisdocumentandanymapincludedhereinarewithoutprejudicetothestatusof
orsovereigntyoveranyterritory,tothedelimitationofinternationalfrontiersand
boundariesandtothenameofanyterritory,cityorarea.
Pleasecitethispublicationas:
OECD(2013),GlobalForumonTransparencyandExchangeofInformationforTaxPurposesPeer
Reviews:Germany2013:Combined:Phase1+Phase2,incorporatingPhase2ratings,
OECDPublishing.
http://dx.doi.org/10.1787/9789264205642-en
ISBN978-92-64-20563-5(print)
ISBN978-92-64-20564-2(PDF)
Series:GlobalForumonTransparencyandExchangeofInformationforTaxPurposesPeerReviews
ISSN2219-4681(print)
ISSN2219-469X(online)
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TABLE OF CONTENTS – 3
Table of Contents
About the Global Forum                                             5
Executive Summary                                                 7
Introduction                                                       11
Information and methodology used for the peer review of Germany          11
Recent developments                                               18
Compliance with the Standards                                       19
A. Availability of Information                                        19
Overview                                                        19
A1 Ownership and identity information                               21
A2 Accounting records                                            44
A3 Banking information                                           49
B. Access to Information                                            53
Overview                                                        53
B1 Competent Authority’s ability to obtain and provide information        54
B2 Notification requirements and rights and safeguards                  59
C. Exchanging Information                                          63
Overview                                                        63
C1 Exchange-of-information mechanisms                             65
C2 Exchange-of-information mechanisms with all relevant partners        72
C3 Confidentiality                                                75
C4 Rights and safeguards of taxpayers and third parties                  76
C5 Timeliness of responses to requests for information                   77
Summary of Determinations and Factors Underlying Recommendations    83
PEER REVIEW REPORT – COMBINED PHASE 1 AND PHASE 2 REPORT – GERMANY © OECD 2013
4 – TABLE OF CONTENTS
Annex 1: Jurisdiction’s Response to the Review Report                   87
Annex 2: List of All Exchange-of-Information Mechanisms in Force        88
Annex 3: List of all Laws, Regulations and Other Material Received       93
Annex 4: People Interviewed During On-Site Visit                       95
PEER REVIEW REPORT – COMBINED PHASE 1 AND PHASE 2 REPORT – GERMANY © OECD 2013
ABOUT THE GLOBAL FORUM – 5
About the Global Forum
The Global Forum on Transparency and Exchange of Information for Tax
Purposes is the multilateral framework within which work in the area of tax
transparency and exchange of information is carried out by over 120 jurisdic-
tions, which participate in the Global Forum on an equal footing
The Global Forum is charged with in-depth monitoring and peer review of
the implementation of the international standards of transparency and exchange
of information for tax purposes These standards are primarily reflected in the
2002 OECD Model Agreement on Exchange of Information on Tax Matters
and its commentary, and in Article 26 of the OECD Model Tax Convention on
Income and on Capital and its commentary as updated in 2004 The standards
have also been incorporated into the UN Model Tax Convention
The standards provide for international exchange on request of foresee-
ably relevant information for the administration or enforcement of the domes-
tic tax laws of a requesting party Fishing expeditions are not authorised but
all foreseeably relevant information must be provided, including bank infor-
mation and information held by fiduciaries, regardless of the existence of a
domestic tax interest
All members of the Global Forum, as well as jurisdictions identified by
the Global Forum as relevant to its work, are being reviewed This process is
undertaken in two phases Phase 1 reviews assess the quality of a jurisdiction’s
legal and regulatory framework for the exchange of information, while Phase 2
reviews look at the practical implementation of that framework Some Global
Forum members are undergoing combined – Phase 1 and Phase 2 – reviews
The ultimate goal is to help jurisdictions to effectively implement the interna-
tional standards of transparency and exchange of information for tax purposes
All review reports are published once adopted by the Global Forum
For more information on the work of the Global Forum on Transparency
and Exchange of Information for Tax Purposes, and for copies of the pub-
lished review reports, please refer to wwwoecdorg/tax/transparency and www
eoi-taxorg
PEER REVIEW REPORT – COMBINED PHASE 1 AND PHASE 2 REPORT – GERMANY © OECD 2013

EXECUTIVE SUMMARY – 7
Executive Summary
1 This report summarises the legal and regulatory framework for trans-
parency and exchange of information of Germany The international standard
which is set out in the Global Forum’s Terms of Reference to Monitor and
Review progress Towards Transparency and Exchange of Information, is
concerned with the availability of relevant information within a jurisdiction,
the competent authority’s ability to gain timely access to that information,
and in turn, whether that information can be effectively exchanged with its
exchange of information partners
2 As a major world economy, Germany has a long history in negotia-
tions of tax treaties leading to a broad treaty network covering more than 100
jurisdictions, 89 of them being covered by a double tax convention and 17 by
a tax information exchange agreement This network includes all Germany
main economic and diplomatic partners as well as financial centres Germany
is also able to exchange information with other EU member States1 under the
EU Council Directive 77/799/EEC of 19 December 19772 concerning mutual
1 The current EU members, covered by this Council Directive, are: Austria, Belgium,
Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta,
the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden
and the United Kingdom Regarding Cyprus – note by Turkey: The information
in this document with reference to “Cyprus” relates to the southern part of the
Island There is no single authority representing both Turkish and Greek Cypriot
people on the Island Turkey recognises the Turkish Republic of Northern Cyprus
(TRNC) Until a lasting and equitable solution is found within the context of the
United Nations, Turkey shall preserve its position concerning the “Cyprus issue”
Note by all the European Union Member States of the OECD and the European
Commission: The Republic of Cyprus is recognised by all members of the United
Nations with the exception of Turkey The information in this document relates to
the area under the effective control of the Government of the Republic of Cyprus
2 This Directive came into force on 23 December 1977 and all EU members were
required to transpose it into national legislation by 1 January 1979 It has been
PEER REVIEW REPORT – COMBINED PHASE 1 AND PHASE 2 REPORT – GERMANY © OECD 2013
8 – EXECUTIVE SUMMARY
assistance by the competent authorities of the member States in the field of
direct taxation and taxation of insurance premiums.
3 The German legal environment usually ensures that the necessary
information concerning ownership and financial activities is maintained
for all relevant companies, partnerships, foundations and other entities and
arrangements This is in particular thanks to the registration requirements
for companies and partnerships, the anti-money laundering legislation
requiring a range of service providers to conduct customer due diligence
and requirements to report information to the Federal Central Tax Office
for tax purposes Nevertheless, further action should be taken to ensure the
availability to government authorities of information on bearer share holders
The German legislation contains provisions requiring accounting informa-
tion and underlying documentation to be kept for a minimum of six years for
all relevant entities and arrangements There are no restrictions in Germany
regarding the availability of bank information to government authorities
4 Access to information is ensured by strong information gathering
powers granted by the German fiscal code as well as a strong compliance
culture These powers, and the penalties for non-compliance, are strong
enough to ensure the Federal Central Tax Office has the information it needs
to respond to international requests for information There is however a co-
ordination issue as EOI for tax purposes is conducted by the German compe-
tent authority situated in Bonn while, due to the German federal organisation,
the actual collection of information is the responsibility of the authorities at
the state (Länder) level, and this contributes to some delays in provision of
responses Additional contributing factors are the need to translate requests
into German and the lack of monitoring of the status of requests Indeed,
Germany is only able in 12% of cases to provide responses to international
requests for information within three months
5 Before providing information to the requesting party, Germany must
inform the taxpayer that it will do so In practice, even though the German
legislation foresees exceptions to this notification procedure, the taxpayer is
always notified Nevertheless, the prior notification process has to date lim-
ited impact on the effectiveness of exchange of information as the sending of
information abroad is rarely challenged by taxpayers
6 Considering its involvement in developing a very comprehensive
network of tax agreements, its status as a founder of the European Union and
its key position in international trade, Germany is a very active country in the
field of exchange of information (EOI) on request, receiving between 1 000
and 2 000 requests a year This volume of requests and the will of the German
amended since that time A new Mutual Assistance Directive was adopted by the
EU Council on 7 December 2010 and will enter into force on 1 January 2013
PEER REVIEW REPORT – COMBINED PHASE 1 AND PHASE 2 REPORT – GERMANY © OECD 2013