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1. In your jurisdiction, are taxpayers obliged to maintain transfer pricing documentation? Does this obligation apply to all taxpayers, or only to certain categories (e.g. taxpayers with turnover or assets exceeding a particular threshold)?
In Germany, specific requirements for transfer pricing documentation have been enacted since 2003. Pursuant to section 90, para. 3 of the German General Tax Code (Abgabenordnung), the taxpayer must prepare transfer pricing documentation concerning all cross-border transactions with related parties. Furthermore, the taxpayer must deliver supporting evidence for such transactions. Therefore, inter-company transactions generally have to be evidenced by written agreements in order to be accepted by the German tax authorities. Any agreement must be concluded before the respective transaction is executed, and their terms must be complied with in full.
Besides this, for exceptional business transactions (e.g. internal restructurings or the conclusion of long-term agreements) documentation has to be prepared contemporaneously, which is defined to mean within six months of the conclusion of the fiscal year at the latest. This also applies in the case of a transfer of business functions out of Germany (section 1, para. 3 of the German Foreign Tax Act (Außensteuergesetz), administrative decree of 13 October 2010, BStBl I, 2010, p. 774).
Less strict transfer pricing documentation requirements may apply in Germany, but only where:
the value of all transactions concerning goods and products with all related parties does not exceed the amount of EUR 6m per fiscal year; and
the sum of all remuneration for all (other) services does not exceed an amount of EUR 600,000 per fiscal year.
However, even in such cases, documents (e.g. contracts), information and explanations have to be provided to the tax authorities upon request. Documentation of exceptional business transactions has to be prepared, but the transfer pricing documentation for general (ongoing) inter-company transactions is less formal.
2. What is the content of the documentation that must be prepared?
a) Which transactions must be documented (all transactions with associated enterprises, or only those which exceed a particular threshold)?
Pursuant to section 90, para. 3 of the German General Tax Code (Abgabenordnung), the taxpayer must deliver transfer pricing documentation with respect to all cross-border transactions with associated enterprises or transactions outside Germany. This is subject to an exemption where the value of all associated party transactions concerning goods and products does not exceed EUR 6 million per fiscal year, and the sum of all remuneration for all (other) services does not exceed EUR 600,000 per fiscal year.
b) What is the definition of “associated enterprises” for the purposes of this requirement (in particular, are transactions between a permanent establishment and its head office in the scope of the documentation requirement)?
A definition of “associated enterprises” is included in section 1 para. 2 of the German Foreign Tax Act (Außensteuergesetz). Pursuant to this, the term associated party (related party) may – in particular – be based on a direct or indirect shareholding of at least 25%, a dominating influence, any other possible substantial influence, or it may be based on identical interests or acting in concert.
Furthermore, transactions between a permanent establishment and its head office are also subject to transfer pricing documentation requirements.
c) For EU countries, is the content of the documentation similar to that described in the EU Code of Conduct on transfer pricing documentation for associated enterprises (“EU TPD”)? If not, are taxpayers entitled to choose between the local requirements and the EU TPD?
German tax legislation on transfer pricing and the decrees issued by the German tax authorities do not explicitly refer to the Code of Conduct on Transfer Pricing Documentation for Associated Enterprises in the EU (EU TPD). Therefore, the EU TPD cannot formally be chosen as an alternative to local German transfer pricing rules. However, the content of country-specific documentation as set out in the EU TPD is basically also required under German law, although some specific German rules (e.g. further details) need to be considered in addition.
On the basis of section 90, para. 3 of the German General Tax Code (Abgabenordnung), the German Ministry of Finance has enacted a regulation (GAufzV, dated 12 July 2017, BStBI I, 2017, p. 2367) providing details as to what documentation is required. Further details are, in particular, included in the 2005 Administrative Guidelines (VerwGr-Verfahren of 12 April 2005, BStBI I, 2005, p. 570). In general, the documentation must be based on the single transaction in question, but it is permissible to group comparable transactions if such grouping is determined before the occurrence of the transaction.
Similar as stated in the EU TPD, the German rules require that each German entity has to provide the following documentation:
master data documentation (master file)
country-specific and enterprise-related documentation (local file)
According to the master file rules, only taxpayers that are part of a multinational group and those whose revenues from unrelated and related-party transactions in the previous fiscal year amount to at least EUR 100m are subject to the requirement to report master file-related information.
A multinational group includes at least one foreign enterprise or one foreign permanent establishment (PE). The master file has to include an overview of the group’s worldwide activities and details on the transfer pricing system applied to all intercompany transactions between related entities. Details of the master file reporting are included in the GAufZV (regulation), where reference is made to the recommendation in Action 13 of the OECD BEPS project.
According to section 90 paragraph 3 German General Tax Code (Abgabenordnung), each German entity has to provide documentation on (i) facts and circumstances and on (ii) the appropriateness of the transfer prices used. In general terms, the following information is to be provided (which may separately be added by further documentation, e.g. if R&D functions and risks have changed):
General information about the group and ownership’s structure, the business and group organization, that is, legal and economical basis (facts and circumstances), for example, legal group structure charts, corporate details of related parties, permanent establishments, organizational and operative group structure charts, type of business (e.g. distribution, manufacturing services, etc.), business strategy, market situations, major competitors, overview of intercompany contracts, information on a set-off of benefits, overview regarding tax rulings, Advance Pricing Agreements and Mutual Agreement Procedures, financial statements, development of financial ratios.
Business relations with related parties or with respect to non-German permanent establishments, i.e. type and extent of the business conducted with related parties (e.g. purchases, sales services, financing, and other use of assets), including overview of flows of goods and services, all relevant agreements concluded (e.g. on goods, services, R&D, licenses, leases, loans), overview regarding intangible assets owned by the taxpayer and licensed to related parties, information on how contractual agreements have actually been carried out, etc.
Analysis of functions and risks, description of the value production chain, including function and the associated risk of the taxpayer and the related parties within the particular business transaction, material assets, the business strategy, the relevant market and competition.
Analysis of transfer pricing policy: including description and explanations of the appropriateness of the chosen transfer pricing method, explanations of the appropriateness of the transfer prices applied, calculation records, data about comparable third parties (comparable search), price adjustments and reasons for losses. In this respect, the taxpayer has to maintain documentation on the selection and application of its transfer pricing methodology, as well as the point in time when the transfer prices used were established. Such data is necessary to confirm that the taxpayer complied with the arm’s length standard.
With respect to an analysis conducted in a database, it should be noted that information needs to be made available in electronic form and with a complete documentation of the research process; a documentation on paper only is not sufficient anymore.
d) For all countries (and, in particular, OECD countries), is the content of the documentation similar to that described in the revisions to chapter V of the OECD transfer pricing guidelines (final report on Action 13 of the BEPS project)? If not, are taxpayers entitled to choose between the local requirements and the OECD approach?
Based on Action 13, the transfer pricing documentation has to be formally established as a three-tiered approach, i.e. a master file, local files and a country-by-country report (CbCR) have to be set up. In Germany, such three-tiered approach to transfer pricing documentation has been implemented in late December 2016, in most cases applicable for fiscal years beginning after 31 December 2015.
Whereas the master file and the CbCR follow the suggestions in Action 13 of the OECD BEPS project, the rules for the local file are not fully in line with the OECD approach. The following examples may illustrate that German transfer pricing rules differ from the OECD approach, i.e., partially more details and stricter rules are required by the OECD, but partially German rules are exceeding the requirements of the OECD guidance. In this respect, it should be noted that there is no free choice of the German taxpayer to choose between the German rules and the OECD approach. The German rules are to be seen as a minimum requirement.
Examples for stricter rules required by the OECD:
Although German companies are obliged to prepare appropriate transfer pricing documentation, they only have to present the documentation upon request of a tax auditor, however, in such a case within sixty days. In contrast to this, the OECD guidance states that it is best practice to require the finalization of the transfer pricing documentation no later than the due date for the filing of the tax return for the fiscal year in question.
According to German transfer pricing rules, it is not necessary to carry out a best-method selection; only the transfer pricing method chosen needs to be justified. Based on the OECD guidance, a best-method approach has to be included in the local file.
For the determination of transfer prices, the OECD guidance requests to use the price setting approach (Action 13, Chapter V, D.1, No. 27). However, under specific conditions the German rules allow to choose between the outcome testing approach and the price setting approach (2005 Administrative Guidelines – VerwGr-Verfahren of 12 April 2005, BStBl I, 2005, p. 570, No. 18.104.22.168), which is in line with the 2017 OECD Transfer Pricing Guidelines describing the price setting approach as being equivalent to the outcome testing approach (see No. 3.69-3.71).
Examples of German rules being stricter than the OECD guidance:
Generally, German transfer pricing documentation has to be set up in German language. Another language, e.g., English, may only be used upon prior approval by the German tax authorities. Only the country-by-country report (CbCR) may be set up in English. In contrast to this, the OECD guidance is more open to use other languages.
According to German transfer pricing rules, all intra-group agreements involving the German taxpayer have to be listed (and to be provided upon request). Based on the OECD guidance, however, only copies of substantial agreements are to be included in the local file.
e) Do taxpayers which are not established in your jurisdiction need to undertake to provide any specific information upon request? Can your tax authorities require the taxpayer in your jurisdiction to provide information which is located in another state?
According to section 90, para. 2 of the German General Tax Code (Abgabenordnung), the taxpayer has the burden of delivering supporting evidence for all cross-border transactions or transactions outside Germany. This applies to all taxpayers being subject to tax in Germany, irrespective of their location. The taxpayer is obliged to use all existing legal and practical options to achieve this. The requirement extends to requesting information from associated parties, if this is relevant for German tax purposes.
Besides this, the taxpayer must keep all records and documentation (including electronic data) of the German entity in Germany, unless an exemption applies (e.g. records of a foreign branch are to be maintained at the premises of such branch based on the relevant foreign tax law), or the German tax authorities have agreed an exemption, e.g. allowing the taxpayer to maintain documents outside Germany (sections 146 and 148 of the German General Tax Code – Abgabenordnung).
f) If comparable studies are to be provided, do the tax authorities generally accept regional benchmark studies (e.g. pan-European benchmark studies)?
According to section 90, para. 3 of the German General Tax Code (Abgabenordnung) and the GAufzV, the taxpayer is obliged to collect, to the extent possible, comparable internal and publicly obtainable data supporting the transfer pricing method applied. In particular, the taxpayer has to document comparable data resulting from its own third-party transactions, e.g. pricing, general terms and conditions, cost quota, profit margin, gross margin and net margin. This is relevant for testing the transfer prices resulting from the resale price method or cost-plus method. Furthermore, such comparables become relevant in connection with cost sharing agreements, and the determination of interest rates or license fees.
If external (publicly obtainable) data is used, sufficient and comparable data has to be available in a database, e.g. Amadeus/Orbis, which is generally accepted by the German tax authorities. Such data may be based on regional benchmark studies. However, the most important factor is that the data needs to be comparable to the taxpayer’s particular case. This may not always be possible. Therefore, according to the 2005 Administrative Guidelines (VerwGr-Verfahren of 12 April 2005, BStBl I, 2005, p. 570, No. 22.214.171.124), comparable research based on a digital database is not mandatory in all cases.
Moreover, the German tax authorities state in No. 126.96.36.199 of their 2005 Administrative Guidelines that a calculation solely based on database research is not sufficient for determining the appropriate transfer price. The specific facts and circumstances of the underlying case have to be considered. External database information generally does not provide for such an individual approach, and the proper determination and documentation of transfer prices requires more detailed consideration.
If electronic database research is carried out, the taxpayer must document all data retrieved, as well as the research process by which the data was extracted. The German tax authorities must be able to review the whole research process, which also includes access to electronic data for carrying out their own alternative calculations (section 147 paras. 5 and 6 of the German General Tax Code – Abgabenordnung). In particular, the function of the different entities included in the database needs to be comparable to the function of the tested entity. Furthermore, the German tax authorities often expect the products to be comparable as well as the functions. In practice, data is often averaged over three years in order to eliminate high variances.
g) If comparable studies are to be provided in general, are safe harbours / specific circumstances exempting taxpayers from preparing benchmark studies (such as the EU Joint Transfer Pricing Forum guidelines on low value adding services
Report called “Guidelines on low value adding intra-group services” adopted by the European Union Joint Transfer Pricing Forum during the meeting of 4 February 2010.
or revisions to chapter VII of the OECD transfer pricing guidelines about low value adding intra-group services) in your jurisdiction or are there situations in which tax authorities do not request benchmark studies? If so, in which circumstances taxpayers are exempted from benchmark studies?
As described above under f), there is no general requirement in Germany to provide the tax authorities with benchmark studies based on a database research. Nevertheless, such studies are often expected by the tax auditor, as they are internationally common. Furthermore, comparable studies are generally helpful in underlining the transfer prices and the calculation method chosen.
In case of administrative services (as part of low value adding intra-group services), the German tax authorities generally accept the cost-plus method and a mark-up of 5% – 10%. This mark-up range may be based on a decree of 1999. According to this, for controlling or coordination services rendered by a permanent establishment located in Germany, a mark-up of 5% – 10% is generally accepted (see BMF dated 24 December 1999, BStBl I, 1999, p. 1076 (with further amendments), No. 4.4.4.). Such mark-up range should generally also apply to inter-company agreements between related parties in comparable cases.
h) What language(s) are to be used by taxpayers in submitting the transfer pricing documentation?
Generally, all documentation has to be in German. Unless the tax authorities have accepted the filing of the documents in another language (e.g. English), a translation of transfer pricing documentation has to be provided within a time frame of 60 days upon request.
Only the country-by-country report (CbCR) may be set up in English language based on a decree issued by the German tax authorities on 11 July 2017.
3. What is the deadline or timescale for providing transfer pricing documentation to the tax authorities (is it to be provided for example upon filing of the tax returns, at the beginning of a tax audit, or on the specific request of the tax authorities)?
Under section 90, para. 3 of the German General Tax Code (Abgabenordnung), taxpayers have to submit appropriate transfer pricing documentation (which must not be materially unusable) within 60 days of a request generally made by the tax authorities during a tax audit. It is not necessary to submit such documentation when filing tax returns. The time frame of 60 days is reduced to 30 days for exceptional business transactions (e.g. restructuring or change of sales systems) or similar matters of major importance; an extension may only be granted upon application, where good reason is shown.
4. In the event that the documentation is not provided within the applicable timescale, or is incomplete, do documentation-related penalties apply in your jurisdiction? If so, please detail the penalties and the circumstances in which they do and do not apply.
The tax authorities are allowed to charge penalties if the documentation requirements are not fulfilled. The taxpayer has to pay a penalty of EUR 5,000 if the documentation has not been produced for a relevant business transaction or if the documentation is materially unusable. However, the penalty has to be 5% to 10% of the additional income that is assessed as a result of the non-production of the records, if this amount exceeds EUR 5,000. If the documentation is produced after the sixty-day period or the thirty-day period, a minimum penalty of EUR 100 per day will be due, up to EUR 1 million.
In case a required country-by-country reporting (CbCR) or a required notification (information of the filing company) has not been delivered to the German tax authorities, a penalty of up to EUR 10,000 can be assessed. The same applies if the CbCR or its notification is incomplete or was not delivered on time.
All such penalties do not qualify as taxes and are not tax deductible. The following table provides an overview of the penalties that can be assessed:
No or unusable transfer pricing documentation provided
5 – 10% of the income increase
at least EUR 5,000 for each business transaction concerned
Late filing of useful documents
at least EUR 100 per day of delay
maximum EUR 1m
No, incomplete or late delivery of CbCR or notification
maximum EUR 10,000
5. Does the absence or incompleteness of documentation reverse the burden of proof as regards the arm’s length character of the transactions?
If all transfer pricing documentation requirements under German law are fulfilled and appropriate transfer prices have been used, no adjustment is possible by the tax authorities. In such a case, the burden of proof is on the tax authorities if they intend to change the income calculation.
However, if this is not the case, the German tax authorities may assume that the taxpayer’s income taxable in Germany is higher than the amount the taxpayer declared (section 162 para. 3 of the German General Tax Code – Abgabenordnung). Thus, if the documentation is insufficient, the burden of proof is shifted to the taxpayer. The tax authorities are allowed to carry out their own calculations and to adjust the tax basis. If there is a range of prices, the tax authorities may choose the point of the price range that is most disadvantageous to the taxpayer.
6. In the event that the tax authorities (i) impose documentation-related penalties and (ii) make a transfer pricing reassessment, does the imposition of documentation-related penalties prevent the taxpayer from initiating any mutual agreement procedure which may be contained in an applicable tax treaty (or, for EU countries, the procedure contained in the EU Arbitration Convention) with a view to eliminating any double taxation resulting from the transfer pricing reassessment?
Almost all double tax treaties concluded by Germany include an equivalent of Art. 25 of the OECD Model Convention which describes the mutual agreement procedure. Under this procedure, two treaty partners can resolve discrepancies in the application of the double tax treaty. In practice, most cases deal with different interpretations of Art. 9 and the application of the arm’s length principle. Alternatively, in EU cases, the taxpayer can apply for a procedure under the EU Arbitration Convention.
However, the tax authorities have indicated in a published letter that the mutual agreement procedure will not be commenced if the taxpayer does not fully comply with its duty to provide information to the tax authorities (BMF of 13 July 2006, BStBl I, 2006, p. 461). Therefore, if no sufficient transfer pricing documentation is available, this can prevent the German taxpayer from a mutual agreement procedure or a procedure set forth in the EU Arbitration Convention.
7. Any other relevant aspect not addressed above?
B. Country-by-Country reporting (“CbCR”)
1. Did your jurisdiction implement the obligation to file a CbCR? If not, is the introduction of the CbCR in your jurisdiction contemplated and, if so, when?
In late December 2016, Germany introduced country-by-country reporting rules which generally apply for tax years starting after 31 December 2015.
2. If the obligation to file a CbCR is in force, what is the tax year from which this obligation applies and what is the deadline for filing the CbCR?
The German CbCR requirement generally applies to fiscal years starting after 31 December 2015. The annual CbCR has to be filed electronically with the German Federal Central Tax Office (Bundeszentralamt fuer Steuern) within one year following the end of the fiscal year concerned (e.g. at the latest on 31 December 2017 for fiscal years ending 31 December 2016).
3. Which taxpayers have to file a CbCR in your jurisdiction?
According to section 138a of the German General Tax Code (Abgabenordnung), the domestic group parent company is required to prepare a CbCR if the group financial statements include at least one foreign enterprise or one foreign PE, and consolidated sales revenue in the previous fiscal year amounts to at least EUR 750m.
A “secondary mechanism” is implemented for domestic entities that are part of a multinational entity group that includes both a “surrogate parent filing” and a “secondary reporting local filing”. With regard to “surrogate parent filing”, the foreign group parent designates the German resident entity to prepare and file the report. With regard to a “secondary reporting local filing”, the German Federal Central Tax Office (Bundeszentralamt fuer Steuern) does not receive a copy of the CbCR filed with the foreign tax authorities; therefore, the German entity would have a filing obligation.
Furthermore, concerning fiscal years starting after 31 December 2016, a German entity is obliged to indicate in its German tax return whether or not it is a German group parent company, a designated surrogate parent company or a domestic group company of a foreign group parent company (obligation within annual tax returns as of 2017). In the latter case, the German entity is also obliged to specify which group entity will file the CbCR and which tax authority will receive the CbCR.
4. Is the content of the CbCR fully in line with the OECD model (final report on Action 13 of the BEPS project)? If not, what are the differences?
The requirements of the German CbCR rules follow the OECD guidance in Action 13 of the BEPS project. Therefore, the information in the CbCR needs to include an overview of the group’s activities, allocated according to the separate tax jurisdictions where the group’s entities or PEs perform such activity. This overview needs to include the following information based on the consolidated accounts:
revenues and other income with related parties
revenues and other income with third parties
income taxes paid in the respective fiscal year
income taxes accrued and paid for the respective fiscal year
earnings before income taxes
number of employees
Furthermore, a list has to be included regarding all entities and PEs by tax jurisdiction for which the above-mentioned information is provided, including a description of the main business activities (e.g. research and development, production or intercompany financing) carried out by the respective entity or PE and any other details that might be necessary to adequately explain the information provided.
5. What is the penalty for failing to file the CbCR on time? Can local subsidiaries of a foreign group suffer the local penalty if the foreign group has not filed the CbCR?
In case a required CbCR or a required notification (information of the filing company) has not been delivered to the German tax authorities, a penalty of up to EUR 10,000 can be assessed. The same applies if the CbCR or its notification is incomplete or was not delivered on time.
6. Are there tax treaties in force in your jurisdiction allowing the communication of CbCR with other jurisdictions?
Concerning Germany, there are not yet any (individual) tax treaties in force allowing the communication of CbCR. However, Germany has enacted local legislation in October 2016, allowing an annual automatic exchange of CbCR data based on the multilateral agreement reached in Paris on 27 January 2016.
7. Any other relevant aspect not addressed above?
C. As the case may be, other documentation / filing requirement in relation to transfer pricing?
1. In your jurisdiction, are there any other documentation / filing requirements in relation to transfer pricing?
In Germany, there are no further documentation or filing requirements than those described above.
2. If so, what is the content of such documentation / filing requirement? What language(s) are to be used by taxpayers?
3. What is the deadline for meeting this documentation / filing requirement?
4. Does this obligation apply to all taxpayers, or only to certain categories (e.g. taxpayers with turnover or assets exceeding a particular threshold)?
5. What is the penalty for failing to meet this requirement on time?