Anotácia
Európsky súdny dvor (ESD) vo svojom rozhodnutí z 26. februára 2019, Wuerttemberg (Finanzgericht Baden-Württemberg), rozhodol, že nemecké nariadenia o zdaňovaní pri odchode vo vzťahu k Švajčiarsku porušujú Dohodu o voľnom pohybe osôb medzi Švajčiarskom a EÚ. Nasledujúci článok skúma, čo presne toto rozhodnutie znamená a aké účinky a požiadavky na zmenu vyvoláva.
Annotation
In its ruling of 26th February 2019 (Case C-581/17) on the German taxation of company shares in the event of the transfer of residence of a natural person in the preliminary ruling procedure requested by the German Finance Court of Baden-Wuerttemberg (
Finanzgericht Baden-Württemberg)
, the European Court of Justice (ECJ) ruled that the German regulations of the Exit Taxation in relation to Switzerland violates the Agreement of the free Movement of Persons between Switzerland and the EU. The following article will examine what exactly this ruling means and what effects and reform requirements it causes.Kľúčové slová
Dohoda o voľnom pohybe osôb, sloboda usadiť sa, zdaňovanie pri odchode, Nemecko, Švajčiarsko
Key Words
Agreement of the free Movement of Persons, Freedom of Establishment, Exit Taxation, Germany, Switzerland
Introduction
On 26 February 2019, the European Court of Justice (ECJ) ruled in the case
Wächtler
that the German exit tax in its current form in relation to Switzerland violates the Agreement on the Free Movement of Persons between Switzerland and the EU.
1)
This means in particular that an unlimited, interest-free deferral must also be granted in relation to Switzerland. However, the ECJ allows the German tax authorities to make this deferral dependent on the provision of a security (such as a bank guarantee), in contrast to the EU/EEA situation (see § 6 para. 5 sentence 1 German Foreign Tax Act,
AStG
). This applies in any case to those taxpayers who settle in Switzerland in order to carry out self-employment there.I. Legal situation under national law
According to current German national tax law, pursuant to section 6, para. 1, sentence 1 of the German Foreign Tax Act (
AStG
), a natural person who has been subject to unlimited tax liability for a total of at least ten years pursuant to section 1, para. 1, sentence 1 of the German Income Tax Law (EStG
) is taxed in accordance with section 17 of the German Income Tax Law (EstG
) in the event of a departure. In accordance with section 17 of the German Income Tax Law (EstG
), the capital gain is taxed when shares in corporations are sold. In the case of the cessation of domicile or habitual residence, the sale of shares in corporations is therefore faked and the hidden reserves are taxed. This results in the creation of a – often considerable – tax burden without the taxpayer simultaneously receiving a corresponding liquidity to settle the tax claim. The tax authorities thus draw on the taxpayer’s assets instead of simply skimming off any potential capacity to pay. This can also involve shares in a foreign company if the latter corresponds to a German corporation.
2)
According to section 17, para. 2, sentence 1 of the German Income Tax Law (
EStG),
capital gain is the difference between the selling price and the acquisition costs. In the absence of a sale, the sale price is replaced by the fair market