New duty to disclose income tax information

Background

As a response to BEPS Action 13, which was transposed as OECD country-by-country reporting, in April 2016 the European Commission published a draft directive on public country-specific income tax information reporting (the “pCbCR Directive”). The pCbCR Directive was only published in the EU official journal in June 2021 and entered into force on 21 December 2021. The EU Member States had until 22 June 2023 to transpose the pCbCR Directive into national law and to exercise any options. It was transposed into national law in Germany by the Implementation Act of 19 June 2023.

Which companies have to compile EU public country-by-country reporting?

The reporting obligations primarily apply to multinationals with group headquarters in Germany and multinationals with their group headquarters located in a third country and subsidiaries in Germany if group revenue exceeds 750 million euros in two consecutive financial years.

Which information is to be included in EU public country-by-country reporting?

The income tax information report is to include the following information:

• the name of the undertaking
• the nature of its business activities
• the number of employees
• revenue
• profits before taxes
• income taxes to pay and paid in the reporting period, and
• profits not distributed.

This information is to be reported for each EU country. The information is also to be reported for business activities in countries listed on the EU blacklist of non-cooperative countries.

The income tax information report is to be sent to the body that maintains the Business Register to be entered in the Business Register. It must also be published on the internet. The deadline for publication is twelve months from the balance sheet date of the financial year.

Scope and particularities of EU public country-by-country reporting in Germany

The regulations on EU public country-by-country reporting, such as duties to prepare and disclose reports, regulations on content and form and provisions on sanctions, were enshrined in national law in sections 342 to 342o of the German Commercial Code (Handelsgesetzbuch – HGB) by the Implementation Act of 19 June 2023.

Under the Implementation Act, the obligation to report income tax information in Germany applies to financial years beginning after 21 June 2024. This means that for financial years based on the calendar year, the first report has to be published for the financial year ending on 31 December 2025.

The national scope of EU public country-by-country reporting matches that of the EU pCbCR Directive. Only corporations and limited liability partnerships are subject to EU public country-by-country reporting.

The option contained in section 342h(4) of the Commercial Code is relevant in practice, according to which EU public country-by-country reporting may be derived from OECD country-by-country reporting (section 138a Fiscal Code). For third countries that are not on the EU blacklist of non-cooperative tax jurisdictions or that have been listed on the grey list for two years in a row, the information may also be shown in an aggregated format. The information may be collected according to definite specifications or alternatively (to reduce the administrative burden) information collected under specifications for tax under section 138a of the Fiscal Code may be used.

Publication of sensitive data and data that would lead to disadvantages if published may be deferred by up to four years if reasons are given and it is checked annually (section 342k of the Commercial Code). Omitted information must, however, be included in the report that is compiled for the fourth financial year after the reporting period at the latest.

Non-compliance with the reporting obligations is sanctioned with fines and penalties of up to 250,000 euros (sections 342o, 342p of the Commercial Code).

Compliance with the reporting obligations is to be audited in future as part of the annual financial audit (section 317(3b), 322(1) of the Commercial Code).

Outlook and recommendation for action

The introduction of EU public country-by-country reporting leads to a further obligation for EU undertakings and EU subsidiaries of multinationals to publish information, and may cause further location-related disadvantages compared to other economic areas. We therefore particularly recommend reviewing the option of deferring publication by up to four years for “sensitive data”.