Obligation to disclose income tax information

The Bun­des­rat vote is ba­sed on the amen­ded ver­sion of the law passe by the Bun­des­tag on May 11, 2023. The main pur­pose of the law is to im­ple­ment Di­rec­tive (EU) 2021/2101 amen­ding Di­rec­tive 2013/34/EU with re­gard to the dis­clo­sure of in­come tax in­for­ma­tion by cer­tain com­pa­nies and bran­ches. Ac­cor­ding to this di­rec­tive, in­come tax in­for­ma­tion of mul­ti­na­tio­nal com­pa­nies and groups with high tur­no­ver that are eit­her re­si­dent in the EU or have sub­si­dia­ries or bran­ches of a cer­tain size must be made trans­pa­rent. The re­por­ting of in­come tax in­for­ma­tion is to be bro­ken down by mem­ber sta­tes of the EU and cer­tain other tax ju­ris­dic­tions in which busi­ness ac­tivi­ties are car­ried out (pu­blic Coun­try by Coun­try Re­por­ting, or pu­blic CbCR for short).

In or­der to im­ple­ment such a pu­blic CbCR, the fol­lo­wing chan­ges in par­ti­cu­lar to com­mer­cial ac­coun­ting law will be made, which - in ac­cor­dance with the im­ple­men­ta­tion pe­riod of the Di­rec­tive - are to be ap­plied for the first time for a fi­nan­cial year be­gin­ning af­ter June 21, 2024.

Affected companies

Cor­po­ra­ti­ons or com­mer­cial part­nerships wi­thin the mea­ning of Sec­tion 264a (1) of the Ger­man Com­mer­cial Code (HGB) that are do­mi­ci­led in Ger­many and ul­ti­mate pa­rent com­pa­nies do­mi­ci­led in Ger­many will be re­qui­red to pre­pare an in­come tax in­for­ma­tion re­port and dis­close it in the com­pany re­gis­ter. This af­fects com­pa­nies whose sa­les re­ve­nues or con­so­li­da­ted sa­les re­ve­nues ex­ceed an amount of EUR 750 mil­lion world­wide in each of two conse­cu­tive fis­cal years.

Note: This im­plies that the ob­li­ga­tion to pre­pare and dis­close an in­come tax in­for­ma­tion re­port lar­gely af­fects the same com­pa­nies that are al­re­ady cur­rently re­qui­red to sub­mit a (non-pu­blic) CbCR to the Fe­deral Cen­tral Tax Of­fice.

In the case of a top-le­vel pa­rent com­pany of a group do­mi­ci­led out­side the EU that has com­pa­ra­ble sa­les and ope­ra­tes in Ger­many via a me­dium-si­zed or large sub­si­di­ary, the in­come tax in­for­ma­tion re­port must be ob­tai­ned and dis­clo­sed by this sub­si­di­ary or branch.

The same ap­plies in the case of a non-group com­pany with its re­gis­te­red of­fice out­side the EU and a do­mestic branch with sa­les re­ve­nues of more than EUR 12 mil­lion in at least two conse­cu­tive fi­nan­cial years, whe­reby this sa­les li­mit may not be fal­len short of in two conse­cu­tive fi­nan­cial years the­reaf­ter.

Note: If a re­port in com­pli­ance with the law can­not be ob­tai­ned, the sub­si­di­ary or branch must sub­mit a cor­re­spon­ding de­cla­ra­tion and to pre­pare and dis­close an in­come tax in­for­ma­tion re­port its­elf using the avail­able in­for­ma­tion. The ob­li­ga­ti­ons does not exist if the non-EU com­pany publis­hes a le­gally com­pli­ant in­come tax in­for­ma­tion re­port on its web­site and the re­port is dis­clo­sed by at least one sub­si­di­ary/branch in the EU.

Content of the income tax information report

For the pre­pa­ra­tion of the in­come tax in­for­ma­tion re­port, de­tai­led con­tent spe­ci­fi­ca­ti­ons must be made re­gar­ding the com­pa­nies to be in­clu­ded, the man­datory dis­clo­sures and the coun­try-spe­ci­fic dis­clo­sure.

The man­datory dis­clo­sures to be made for the re­spec­tive re­por­ting pe­riod in­clude:

• the type of busi­ness ac­tivity,
• the num­ber of em­ployees
• the re­ve­nues,
• the pro­fit/loss be­fore in­come ta­xes
• the in­come tax payable for the re­por­ting pe­riod and the in­come tax paid in that pe­riod, and
• the amount of re­tai­ned earnings.

The in­for­ma­tion above are to be dis­clo­sed se­pa­ra­tely for each EU mem­ber state, for each tax ju­ris­dic­tion clas­si­fied as non-coope­ra­tive un­der the EU list, and for the other tax ju­ris­dic­tions in ag­gre­gate.

Note: Since the af­fec­ted com­pa­nies are es­sen­ti­ally al­re­ady sub­ject to a cor­re­spon­ding coun­try-spe­ci­fic re­por­ting ob­li­ga­tion vis-à-vis the tax aut­ho­ri­ties and the re­por­ting re­qui­re­ments ap­plica­ble in this re­spect may also be used as a ba­sis for ful­fil­ling the new pu­blic re­por­ting ob­li­ga­tion, the Fe­deral Mi­nis­try of Justice, which draf­ted the in­ten­ded le­gal re­qui­re­ments, esti­ma­tes that the bu­reau­cra­tic bur­den for the com­pa­nies will be re­la­tively low.

In ex­cep­tio­nal ca­ses, the com­pa­nies con­cer­ned will not have to in­clude cer­tain in­for­ma­tion in the in­come tax in­for­ma­tion re­port if their dis­clo­sure would cause a si­gni­fi­cant di­sad­van­tage to the mar­ket po­si­tion of the com­pany to which it re­la­tes. Howe­ver, the in­for­ma­tion not in­clu­ded have to be in­clu­ded in the in­come tax in­for­ma­tion re­port to be pre­pa­red for the fourth fi­nan­cial year af­ter the re­por­ting pe­riod at the la­test.

Disclosure

The in­come tax in­for­ma­tion re­port is dis­clo­sed in the Busi­ness Re­gis­ter. For this pur­pose, the re­port must be sub­mit­ted to the Busi­ness Re­gis­ter in Ger­man no la­ter than one year af­ter the end of the re­por­ting pe­riod. In ad­di­tion, the re­port is to be publis­hed on the com­pany's web­site for at least five years with a cor­re­spon­ding pe­riod of notice. Howe­ver, the ob­li­ga­tion to publish the re­port on the com­pany's web­site does not ap­ply if dis­clo­sure is made via the Com­pany Re­gis­ter and re­fe­rence is made on the com­pany's web­site to the fact that the re­port will be ac­ces­si­ble via the Com­pany Re­gis­ter's web­site for a pe­riod of at least five years.

Audit

In the fu­ture, the au­dit of the Su­per­vi­sory Board also co­vers the in­come tax in­for­ma­tion re­port.

The au­di­tor of the an­nual fi­nan­cial state­ments must also ex­amine in fu­ture whe­ther the com­pany to be au­di­ted was ob­li­ged to dis­close an in­come tax in­for­ma­tion re­port and whe­ther it com­plied with its ob­li­ga­tion. The au­di­tor's re­port must pro­vide in­for­ma­tion on the re­sult of the au­dit.

Sanctions

The Fe­deral Of­fice of Justice is re­spon­si­ble for en­for­cing the ob­li­ga­tion to dis­close. It has the aut­ho­rity to im­pose ad­mi­nis­tra­tive fi­nes in the event of de­fault and fi­nes of up to 250,000 eu­ros in the event of con­tent-re­la­ted vio­la­ti­ons.