• Mehr als 3 Millionen Wörter Inhalt
  • |
  • info@itmedialaw.com
  • |
  • Tel: 03322 5078053
Rechtsanwalt Marian Härtel - ITMediaLaw

No products in the cart.

  • en English
  • de Deutsch
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Kurzberatung
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Rechtsanwalt Marian Härtel - ITMediaLaw

No tax exemption according to § 11 para. 1 Sentence 2 InvStG for foreign investment funds

7. November 2022
in Tax
Reading Time: 2 mins read
0 0
A A
0
taxes 653255 1920
Key Facts
  • The Hessian Tax Court ruled that the tax exemption only applies to domestic investment funds.
  • The complaint concerned the validity of Section 11 InvStG with regard to the free movement of capital.
  • Société d'Investissement à Capital Variable sued for reimbursement of the capital gains tax.
  • The court dismissed the claim and did not see any refund claims for foreign funds.
  • The different treatment of funds is justified by coherence in line with European law.
  • A balanced distribution of taxation is ensured by the transparency principle.
  • The ruling is not yet legally binding and an appeal to the Federal Fiscal Court is pending.

The tax exemption provision of Section 11 para. 1 sentence 2 InvStG old version is compatible with the free movement of capital. This was decided by the Hessian Fiscal Court.

The parties essentially dispute whether Sec. 11 InvStG in the versions applicable in the years 2009 to 2013 violates the free movement of capital.

The plaintiff was a Luxembourg-based Société d’Investissiment á Capital Variable (SICAV) in the legal form of a Société Anonyme (S.A.). It held shares in German companies and, without having a branch in Germany, received distributions from domestic corporations in the years 2009 to 2013, on which – taking into account the refund procedure based on the DBA-Luxembourg and carried out by the plaintiff’s custodian bank – 15% capital gains tax was attributable as a result. The plaintiff unsuccessfully applied for a refund of these capital gains taxes. In support of its claim, it argued that Sec. 11 InvStG only exempts domestic investment funds from taxation in a manner contrary to European law.

The Hessian Tax Court dismissed the action as unfounded. The plaintiff is not entitled to a (capital gains tax) refund. As a foreign investment fund, it does not fall under the national tax exemption provision of Section 11 (1) of the German Income Tax Act, which applies only to domestic investment funds. 1 sentence 2 InvStG.

The different treatment of domestic and foreign investment funds does not constitute a violation of the free movement of capital guaranteed under European law.
It is true that there is unequal treatment of foreign and domestic investment funds due to the provision in Section 11 para. 1 InvStG, but this is justified by consistency and the need to maintain a balanced division of taxation powers.

Coherence requires the balancing of advantages and disadvantages within the framework of an overall consideration involving the shareholder, whereby the balancing must neither be understood mathematically nor must occur in the same person. Due to the transparency principle applicable to domestic fund taxation, there is a direct connection between the taxation of the investment fund and the shareholder, so that the taxation of the shareholder must be included in the comparative analysis of the tax burden.

Taking into account the taxation of the shareholder, a balanced allocation of taxation powers is maintained by the national exemption provision within the framework of an overall view. This is because the unit of fund and unit holder is only charged once in the result when the imputation rules are included. Within the scope of the comparative analysis, not only a differentiation between domestic and foreign investment funds had to be made, but also a differentiation according to whether the shareholder was a tax resident or a tax non-resident and whether he or she participated in a domestic or foreign investment fund.

Any remaining unequal treatment with regard to the tax credit would have to be resolved, in accordance with the principle of proportionality, primarily by an interpretation in conformity with European law, in this case of Sec. 4 (4) of the German Income Tax Act. 2 InvStG, to be offset.

In the opinion of the Senate, the provision is also in conformity with European law against the background of recent ECJ case law.

The judgment of 21.08.2019 is not yet final. The appeal has been lodged with the Federal Fiscal Court under Ref. I R 1/20 pending.

Marian Härtel
Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Tags: BankCase lawCorporationFederal Fiscal CourtInvestmentLawsuit

Weitere spannende Blogposts

Webinar on DE-minimis computer game promotion

Webinar on DE-minimis computer game promotion
7. November 2022

On June 14, the Federal Ministry of Transport and Digital Infrastructure will offer a webinar on de minimis funding from...

Read moreDetails

OLG Cologne with differentiated influencer decision

7. November 2022

For a long time, nothing has been heard from the field of influencer jurisprudence and furthermore, there is no BGH...

Read moreDetails

LG Frankfurt: Online portal must offer more than just woman/man to choose from

Activity as a registered trader: The liability traps
7. November 2022

At the beginning of December last year, the Frankfurt Regional Court made an interesting decision for all online providers who,...

Read moreDetails

Facebook may block accounts without clear names

Facebook/Instagram: Court deliveries also permitted in German!
7. November 2022

The Munich Higher Regional Court ruled that Facebook was entitled to prohibit the use of pseudonyms and justified this primarily...

Read moreDetails

No more warnings due to incorrect imprint?

Social media accounts and imprint
7. November 2022

Especially from my influencer clients or streamers who are active on Twitch, YouTube or similar social media platforms, I get...

Read moreDetails

B2B contracts: Link reference to GTC is sufficient

Lego brick still protected as a design patent
27. March 2023

Since I create many software contracts, the question arises again and again whether and how GTC can be included in...

Read moreDetails

Consumer’s right of withdrawal for teak trees in Costa Rica with a Swiss company

BGH considers Uber Black to be anti-competitive
17. May 2024

On the right of withdrawal of a consumer residing in Germany when concluding "purchase and service contracts" for teak trees...

Read moreDetails

Federal Court of Justice rules on cookie storage consent

ECJ: Cookies require explicit consent of users
7. November 2022

The I. Civil Senate of the Federal Court of Justice, which is responsible among other things for claims under the...

Read moreDetails

Federal government and esports: no own expert opinion on recognition as a sport

pexels photo 896851 1
7. November 2022

According to its own statement, the federal government has not commissioned any separate expert opinions on the issue of Esport...

Read moreDetails
Contractual regulations for no-code/low-code software development
Other

Contractual regulations for no-code/low-code software development

21. May 2025

No-code and low-code platforms enable rapid software development without extensive manual programming. Applications are increasingly being developed on the basis...

Read moreDetails
Erotic content on OnlyFans: Copyright and personality rights protection for creators

Erotic content on OnlyFans: Copyright and personality rights protection for creators

20. May 2025
Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

19. May 2025
Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

18. May 2025
From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

17. May 2025

Podcastfolge

fcb134a2b3cfec5d256cf9742ecef1cd

The unconventional lawyer: a nerd in the service of the law

26. September 2024

In this captivating episode of the podcast "The Unconventional Lawyer", we delve into the world of a lawyer who is...

Read moreDetails
AI in law: opportunities, risks and regulation – the IT Media Law Podcast Episode 3

AI in law: opportunities, risks and regulation – the IT Media Law Podcast Episode 3

24. September 2024
3c671c5134443338a4e0c30412ac3270

“Digital law decoded” with lawyer Marian Härtel

26. September 2024
7c0b449a651fe0b81e5eec2e23515012 2

Copyright in the digital age

15. January 2025
d5e1e6cad87cb839a9e23af79034bd94

AI in the legal system: Towards a digital future of justice

16. October 2024

Video

My transparent billing

My transparent billing

10. February 2025

In this video, I talk a bit about transparent billing and how I communicate what it costs to work with...

Read moreDetails
Fascination between law and technology

Fascination between law and technology

10. February 2025
My two biggest challenges are?

My two biggest challenges are?

10. February 2025
What really makes me happy

What really makes me happy

10. February 2025
What I love about my job!

What I love about my job!

10. February 2025
  • Privacy policy
  • Imprint
  • Contact
  • About lawyer Marian Härtel
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
  • en English
  • de Deutsch
Kostenlose Kurzberatung