New disclosure requirement on income tax information in Germany - For whom? And as of when?

Background

In response to BEPS Action 13, which was implemented as country-by-country reporting by the OECD, the European Commission published a draft EU Directive for a public country-specific income tax information report (so-called pCbCR Directive) in April 2016. It was not until June 2021 that the pCbCR Directive was published in the EU Official Journal and came into force on December 21, 2021. The EU member states were obliged to transpose the pCbCR Directive into domestic law and to exercise possible voting rights until June 22, 2023. The domestic implementation in Germany took place with the Implementation Act of June 19, 2023.

Which companies must prepare an EU Public CbCR?

The disclosure requirement essentially applies to:

• international groups with head office in Germany, and
• international groups with head office in a third country and a subsidiary in Germany

if the consolidated group revenues exceeded EUR 750 million in two consecutive fiscal years.

What information must be included in an EU Public CbCR?

• The following information must be included in the income tax information report:
• name of the company
• type of business activities,
• number of employees
• revenues,
• profit before tax,
• income tax payable for the reporting period and the income tax paid in the reporting period, and
• undistributed profits.

The above-listed information must be provided for each (EU) country. They need to be also provided for business activities in EU black-list countries.

The EU Public CbCR is to be sent to the business register for publication. In addition, publication on the Internet is mandatory. The deadline for disclosure is twelve months after the balance sheet date of the relevant fiscal year.

Scope and Specifics of EU Public Country-by-Country Reporting in Germany

As a result of the Implementation Act of June 19, 2023, the regulations on the EU Public CbCR, such as obligations to prepare and disclose, requirements on content and form, and sanction provisions were anchored nationally in sections 342 to 342o of the German Commercial Code (HGB).

In accordance with the Implementation Act, the obligation to prepare reports showing income tax information in Germany applies to all fiscal years beginning after June 21, 2024. In case of a fiscal year corresponding with the calendar year, a report must therefore be published for the first time for the fiscal year ending December 31, 2025 until December 31, 2026.

The domestic scope of application of the EU Public CbCR coincides with that of the EU pCbCR Directive. Only corporations and partnerships with limited liability are subject to the EU Public CbCR.

Of practical relevance is the option included in Section 342h (4) of the German Commercial Code (HGB), according to which the EU Public CbCR can be derived from the OECD CbCR (Section 138a AO). For third countries that are not on the so-called EU blacklist of non-cooperative tax jurisdictions or on the so-called greylist for two consecutive years, the information may also be presented in aggregated form. The information may be determined according to specific specifications or, alternatively - to reduce the administrative burden - data determined according to the tax specifications of Section 138a AO may be used.

For sensitive data and data that would lead to disadvantages if disclosed, disclosure in the EU Public CbCR may be postponed for up to four years, subject to justification and annual review (Section 342k HGB). However, omitted disclosures must be included in the report prepared for the fourth financial year after the reporting period at the latest.

In the event of non-compliance with the reporting obligation, fines and administrative penalties of up to EUR 250,000 (sections 342o, 342p HGB) will be levied.

In the future, compliance with the reporting obligation must also be audited as part of the audit of the annual financial statements (Section 317 (3b) HGB, Section 322 (1) HGB).

Preview and recommended actions

The implementation of the EU Public CbCR leads to a further publication obligation for EU companies and for EU subsidiaries of international groups and could thus lead to further locational disadvantages compared to other non- EU jurisdictions. We therefore recommend that the possibility of deferring publication for up to four years for “sensitive data” be examined in particular.