Germany: Loss relief deferral unconstitutional?

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Germany: Loss relief deferral unconstitutional?

miles.jpg

Andrew Miles

A company's sole purpose was to own and manage an investment project on behalf of a provincial government. However, its principal refused to accept responsibility for the losses and a lengthy legal battle began. At one point the company's position at court appeared hopeless and it wrote off its claim. This led to a large loss in the accounts and to the realisation that the government would no longer accept the company as a business partner. Faced with the loss of its business, it went into liquidation. In the event, the liquidator was more successful at court than the previous management and ultimately won the case. This resulted in a liquidation profit roughly equal to the loss brought forward. At this point the minimum taxation rule took effect with the consequence that basically only 60% of the loss brought forward could be offset against current income. Since the liquidation assessment is necessarily the final assessment in a company's lifetime, the remaining loss carry-forward lapsed. The company argued that the minimum taxation provision was an unconstitutional offence against the guarantee of unfettered ownership. The Supreme Tax Court accepts the minimum taxation provision as being within the constitution in the normal course of events. The primary effect was deferral in the legitimate interests of securing public finance. Even the confiscatory effect of taxing part of the profit earned in a final period while allowing a remaining loss carry-forward to lapse unused did not offend against the constitution. The guarantee of unfettered ownership is not a guarantee of business success. However, the court sees the present case as something of an exception in that the cause of the loss and the cause of the profit – write-down and write-back of a receivable – are inseparable. The profit is the consequence of the loss and to treat it differently to the permanent disadvantage of the taxpayer is to breach the constitutional demand for equal treatment of like circumstances. The matter has now been referred to the Constitutional Court for a final decision.

Andrew Miles (andrew.miles@de.pwc.com)

PwC

Tel: +49 69 9585 6345

Website: www.pwc.de

more across site & shared bottom lb ros

More from across our site

AI-powered tax agents are likely to be the next big development in tax technology, says Russell Gammon of Tax Systems
FTI Consulting’s EMEA head of employment tax and reward tells ITR about celebrating diversity in the profession, his love of musicals, and what makes tax cool
Canadian Prime Minister Mark Carney and US President Donald Trump have agreed that the countries will look to conclude a deal by July 21, 2025
The firm’s lack of transparency regarding its tax leaks scandal should see the ban extended beyond June 30, senators Deborah O’Neill and Barbara Pocock tell ITR
Despite posing significant administrative hurdles, digital services taxes remain ‘the best way forward’ for emerging economies, says Neil Kelley, COO of Ascoria
A ‘joint understanding’ among G7 countries that ‘defends American interests’ is set to be announced, Scott Bessent claimed
The ‘big four’ firm’s inaugural annual report unveiled a sharp drop in profits for 2024; in other news, Baker McKenzie and Perkins Coie expanded their US tax benches
Representatives from the two countries focused on TP as they met this week to evaluate progress under a previously signed agreement – it is understood
The UK accountancy firm’s transfer pricing lead tells ITR about his expat lifestyle, taking risks, and what makes tax cool
Dolphin Drilling intends to discuss the final liability amount and manner of settlement with HM Revenue and Customs
Gift this article