Bücher der Reihe EFS - Entrepreneurial and Financial Studies

»The Constitutionality of Restrictions Regarding the Offsetting of Losses with Income from Capital Assets«: Preliminarily, this thesis addresses the constitutional standards regarding the restrictions for offsetting of losses, in particular as these pertain to the fundamental rights to equality and freedom. The core of this publication examines the constitutionality of Paragraph 20 (6) of the Income Tax Act. The author concludes that only sentences 1-3 of Paragraph 20 (6) of the Income Tax Act are compatible with the fundamental right to equality, whereas sentences 4-6 are unconstitutional.

»Fiscal Purposes within Constitutional Tax Law«: The general fiscal purpose does not justify the restriction of constitutional principles. Nevertheless, courts and literature discuss whether a qualified fiscal purpose can be an appropriate justification. The dissertation analyzes fiscal purposes within constitutional tax law holistically and differentiates various types of fiscal purposes from each other. It proposes an overarching systematization for qualified fiscal purposes and compares the results with EU law and US constitutional tax law.

»The Loss Carryback in Income Tax, Corporate Income Tax and Trade Tax-System, Constitutional Classification and Reform Proposal«: The thesis addresses the question whether the loss carryback is to be classified as a tax subsidy at the disposition of the law-maker or whether requirements of the constitutional law have to be taken into consideration in the process of its design. It is shown that restrictions on the loss carryback - also in trade tax - require justification regarding the laws of equality and civil liberty. On the basis of the constitutional framework that has been developed, a reform proposal is made, which includes the trade tax.

»The Constitutionality of the Real Estate Tax Reform«: The thesis examines the real estate tax reform following the BVerfG ruling of 10.04.2018 (1 BvL 11/14) from a constitutional law perspective. The focus is on the evaluation of the federal property tax law from an equality and freedom perspective. It is elaborated that the valuation procedures largely meet constitutional requirements, the tax rate reductions and the so-called property tax C at the federal and state level are fraught with not insignificant constitutional problems.

»Tax Procedural Internum of the Taxpayer? Scope of the Taxpayer's Obligation to Cooperate with Regard to Internal Tax Documents Prepared Without Legal Obligation«: In principle, the tax authority has to determine the tax-relevant facts of each individual taxpayer. However, the respective information relevant for taxation regularly materializes in the sphere of the taxpayer, which is why he is obliged to cooperate. The thesis examines the extent to which the tax authorities can demand the submission of internal tax documents from the taxpayer that have been prepared without a legal obligation. For this purpose, it develops the institute of the tax procedural internum, which, as a movable system, leads under certain circumstances to the restriction of the taxpayer's obligation to submit documents.

»Destruction and Loss in Value of Private Assets as a Loss on Disposal«: Gains and losses on disposal of private assets are subject to taxation if the requirements of § 17, § 20 (2) or § 23 of the Income Tax Act are met. According to the recent jurisdiction of the Federal Fiscal Court, § 20 (2) also taxes the loss in value of a share. Due to this development, the thesis examines whether the loss in value or destruction of private assets - for example the burning of a painting - results in a taxable loss.

»The Anti-Hybrid Mismatch Rules in Sec. 4k German Income Tax Act Based on Selected Structures and Practical Cases with References to Compliance with European Union Law and German Constitutional Law«: The neutralisation of hybrid mismatch arrangements is analysed in this work on the basis of the implementation of the ATAD in Sec. 4k German Income Tax Act. The provision is assessed by practical cases, Union and constitutional law concerns as well as selected criteria of legisprudence, namely efficiency, practicability and effectiveness. In addition, a comparative analysis of the tax systems of selected Caribbean states, countries and territories is undertaken.

»The Cross-Border Division of Corporations within the European Union«: This work provides an interdisciplinary tax analysis of the rules governing the taxation of cross-border divisions of EU-corporations that are covered by the scope of Section 15 of the German Reorganization Tax Act. Critical deficits of the rules are analysed and reform considerations are developed on the basis of identified economic and EU law principles as well as in accordance with constitutional law.

»Titel: Taxation as the Foundation for Democracy and the Rule of Law«: Taxes are considered the »price of freedom« and a necessary financing instrument of modern democratic states. This book aims to present the relationship between taxation and the state system of liberal democracies from a tax law perspective. Throughout this investigation, the legal, ethical, and economic values of a contemporary tax state will be revealed by applying research methods of legal theory.

»The German Concept of Inside and Outside Basis in Partnership Taxation. Fundamentals of Partnership Taxation and Conclusions for the Depreciation of Partnership Assets«: The thesis examines the German judicially developed concept of inside and outside basis in partnership taxation with special regard to the depreciation of assets. At the same time, the fundamentals of partnership taxation are reappraised and remeasured. The author develops his own standards for the depreciation of assets in partnership taxation based on an appraisal of basic principles of constitutional law, provisions of simple law, and theories of case law.

»Real-estate-rich Entities in Tax Treaties«: The taxation of capital gains resulting from international investments in real property can be subject to tax structuring. Provisions in tax treaties concerning real-estate-rich entities shall counter these arrangements and allow for an equal treatment in terms of capital gains taxation regardless of whether immovable assets or companies with real property are sold. Under examination of Art. 13 (4) OECD-MC, this dissertation shows that although such provisions are desirable from a legal policy point of view, an equal treatment is not achieved by these provisions in their current form.

»Rights Transfers in Trade Tax Law Pursuant to Sec. 8 No. 1 Letter f GewStG«: The thesis contains the first systematic examination of Section 8 No. 1 letter f GewStG. Besides the historical justification with the so-called »Objektsteuerprinzip«, the regulatory purposes cited by the legislator are discussed. The core of the thesis consists in the methodical analysis of the individual elements of the offense in terms of meaning and scope. Based on this, solutions are provided for frequently occurring sorts of cases that have not yet been decided by the Federal Fiscal Court.

»Taxable Entities under the German Inheritance and Gift Tax Act. Partnerships between Transparency and Separation«: The German Inheritance and Gift Tax Act does not explicitly define the entities to be taxed. For partnerships, case law has fluctuated between the partnerships themselves and their partners. In this context, the relationship between civil law and tax law as well as the partnerships having legal capacity is of particular importance. The thesis tackles these aspects and develops a tax-autonomous approach, according to which partnerships are transparent with their partners as the taxable entities.

»The German Implementation of the Authorised OECD Approach: Taxation of Permanent Establishments in Sec. 1 Foreign Transaction Act (AStG)«: The work starts with an overview how permanent establishments were treated in DTAs historically since the League of Nations' Model Tax Convention and the Caroll report. Moreover, the AOA is evaluated against the background of economic standards. The taxation of permanent establishments under Sec. 1 German Foreign Transaction Act (AStG) is closely examined, in particular the relevance of OECD documents for the interpretation, the elements of the provision and the treatment of partnerships.

»The Equalization of Accrued Gain in the System of German Family Inheritance Tax Law. National and International Principles of Taxation«: The majority of spouses in Germany live in a legal or modified community of accrued gains. This is the most economically viable matrimonial property regime, as transfers of assets for the purpose of equalizing gains are possible without incurring German inheritance and gift tax. This seems simple, but the aim of the scheme itself raises numerous questions. This work is the first to examine the central provision of sec. 5 German Inheritance Tax Act at the intersection of German constitutional, civil, and inheritance tax law. In addition, the work addresses, on a comparative law basis, the equally important question of how foreign property regimes are to be assessed within the scope of the provision.

»The Tax Treatment of Disproportionate Contributions between an Obstacle to Restructurings and a Tax-Saving Scheme«: Over a long period of time, disproportionate contributions allowed for a transfer of large fortunes without triggering gift tax because of a lack of coordination between German gift tax law and fundamental principles of German income tax law and civil law. In 2011, however, a legislative intervention caused the pendulum to swing in the other direction. Since then, the amended law bears the risk of unsystematically overtaxing restructuring measures beyond the originally intended reason for such a tax burden. This thesis analyses the tax treatment of disproportionate contributions before and after the change of law. On this basis, a proposal for a legislative reform is introduced that aims at overcoming the imponderables between an obstacle to restructurings and a tax-saving scheme.

»Connecting Factors for the Taxation of Digital Business Models in International Income Tax Law«: The digital transformation also poses challenges for the international tax system. The treatise examines how appropriate taxation of globally operating digital corporations can be ensured in the future. To this end, it analyzes their specifics as well as the functioning of their current taxation and considers the various approaches to a solution - market nexus, digital tax and global minimum taxation - on the basis of dogmatic and practical, national and international as well as legal and cross-jurisdictional criteria.

»The Letting of Real Estate as a Problem of the Fulfillment of Statutory Requirements in the System of Income Taxes. A Value-Oriented Approach to the Specification of Statutory Commercial Elements Using the Example of the Differentiation of Special and Supplementary Services«: The thesis addresses the income tax classification of the letting of real estate as either asset management or a commercial activity. The process of decision-making in practice, which often appears to be very casuistic, is contrasted with a methodical approach, which - by revealing the principles and valuations of income tax law - is intended to lead to consistent results. In doing so, the fundamental findings of legal methodology are elaborated and made fruitful.

»The German Taxation of Controlled Foreign Corporations as a Treaty Override. Between Legitimate Rules against Tax Avoidance Practices and Breach of European Law«: Is the treaty override of § Sec. 20 (1) AStG (still) in conformity with European Union law and what is the significance of the treaty override of the controlled foreign corporation (CFC) if the exercise of taxation rights is secured by the extensive DTA network within the EU and the altered European legal situation? The study systematically identifies the criteria of reliability and system openness of tax systems, which are prerequisites for a defense against abuse in conformity with EU law.

»Contradictory Treatment of the Supplier and the Recipient of the Service in Value Added Tax Law«: The subject of the study is a problem under Value Added Tax Law between the taxable person providing the service, the taxable person receiving the service and the tax authorities responsible for each of them. The problem arises when the tax authorities involved hold contradictory legal opinions with regard to the same transaction. The author comes to the conclusion that the problem can be completely solved by a claim for the issuance of a binding cooperation decision (new § 27c UStG).

»Interpolation as an Ability-to-Pay-Compliant Refrain from Taxation. An Analysis of the Interpolation of Tax Exemption Provisions in Real Estate Transfer Tax Law«: Interpolation is a method developed by the Federal Tax Court to apply tax exemptions of the Real Estate Transfer Tax Act beyond their wording. The work raises the question of a methodologically and systematically viable reasoning for this. Based on the justification of the real estate transfer tax against the constitutional background of the ability-to-pay principle, the work develops its own approach to interpolation, for which the tax exemptions are categorized according to their function.

»Data Protection Supervision of the Activities of the Financial Administration«: Following the reorganisation of data protection law by the GDPR and the related consequential changes by the German tax legislator, tax authorities are subject to supervision by the Federal Commissioner for Data Protection and Freedom of Information (BfDI). This supervisory concept is new and raises many legal questions, which the work addresses. It shows, among other things, that the GDPR does not apply across the board to all types of taxes and that the concentration of supervision at the BfDI over state tax authorities violates the order of competences of the German constitution.

»The Altruistic Advancement of the General Public as a Public-Benefit Purpose: Limiting the Group of Persons Benefiting from such Advancement Based on Personal Features«According to German tax law, a corporation may claim tax privileges on account of its serving directly and exclusively public-benefit purposes. In order to claim these tax privileges, the corporation is required to serve the altruistic advancement of the general public. In his work, the author analyses whether corporations may still benefit from tax privileges if they limit the group of persons benefiting from such advancement based on personal features such as gender or nationality.

Nach der (noch) überwiegenden Meinung im Gesellschaftsrecht ist die Beteiligung des Gesellschafters einer Personengesellschaft grundsätzlich einheitlich. Daher kann ein Personengesellschafter prinzipiell nicht gleichzeitig mehrere gleichartige oder mehrere unterschiedlich ausgestaltete Beteiligungen an derselben Personengesellschaft innehaben (Grundsatz der Einheitlichkeit der Personengesellschaftsbeteiligung).Der Autor untersucht, ob der Grundsatz der Einheitlichkeit der Beteiligung auch für die mitunternehmerische Beteiligung an einer gewerblichen Personengesellschaft im Einkommensteuerrecht gilt. Er kommt zu dem Ergebnis, dass auch die Beteiligung an einer gewerblichen Mitunternehmerschaft im Grundsatz einheitlich ist. Dieser Grundsatz werde jedoch in bestimmten (einkommen- sowie erbschaft- und schenkungsteuerrechtlichen) Fallkonstellationen durchbrochen.

»The Influence of European State Aid Law on National Tax Benefits. An Illustrative Analysis with Special Regard to Tax Rulings and Profit Shifting«Subject of the thesis is the interplay between European state aid law and national tax law with special focus on tax rulings. It is demonstrated that the use of state aid law for purely tax law purposes, the avoidance of profit shifting and tax-free company profits, is misguided. At the same time, this use of state aid law shifts the balance of competences in the Union to the detriment of the Member States.

»Taxable Disjunction in Reorganization-Cases«The study scrutinizes the core elements of a general Entstrickungsprinzip (rule of taxable disjunction), whether such a general Entstrickungsprinzip can be derived from applicable law (§ 4 Abs.1 S. 3 f Einkommensteuergesetz - Income Tax Act -) and how the reservations of the Entstrickungsprinzip under Umwandlungssteuergesetz - Reorganization Tax Act - (such as § 3 Abs. 2 S. 1 Nr. 2 Umwandlungssteuergesetz) can be measured against this general Entstrickungsprinzip.

»The Principle of Proportionality in Taxation. A Research on German Constitutional and Tax Law, and Its Application to Taiwanese Cases«The Taiwanese reception of proportionality principle, particularly in the field of tax law, has been unduly general and superficial. Therefore, based on proportionality principle, this research adopts a holistic approach to examine and distinguish various tax law norm groups i.e. fiscal purpose norms, control norms, redistribution norms, simplification purpose norms, and enforcement norms. The refined and clarified tax law norm groups may serve as a model for Taiwanese constitutional law and tax law's further research.

»The Basic Type of Profit Income. An Interpretation of Section 18 (1) no. 3 of the German Income Tax Act«So far Section 18 (1) no. 3 of the German Income Tax Act (»Income from other self-employment«) has been rather inconspicuous within the tax law practice. The author, however, reaches the conclusion, using the classical methods of interpretation, that this provision constitutes the basic form of the so-called profit income (i.e. agriculture and forestry, trade, self-employment).

The assessment basis of § 7 (1) sentence 5 EStG (German Income Tax Code) is intended to prevent taxpayers from claiming »double depreciation« by transferring an asset used to generate surplus income to their business assets. The thesis discusses the legal provision and shows that there are still arrangements possible for the multiple deduction of expenses. Based on the tax principles, a proposed solution is developed which shall enable an appropriate taxation.