Under certain circumstances, inheritance tax charged in another country cannot be deducted or considered as a liability against the capital assets of a German testator.
Cologne, Germany -- (SBWIRE) -- 09/25/2013 -- GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London- www.grprainer.com/en conclude: If a foreign country charges inheritance tax on the acquisition of capital assets which the German testator has invested in that country, this cannot be deducted from German inheritance tax or considered as a liability of the estate unless a double taxation agreement has been signed between the foreign country and Germany.
This was decided by the Federal Fiscal Court (BHF) on June 29, 2013 (File number II R10/12) in following up on a ruling by the Court of Justice of the European Union (CJEU) of February 12, 2009 (File number C 67/08). However, the Federal Fiscal Court decided that consideration may be given when double taxation would lead to an excessive and punitive tax burden.
In the case decided by the BFH, the estate of the testatrix consisted mainly of capital assets situated in Germany and Spain. The plaintiff and sole heiress and the testatrix were both subject to German taxation. Spain as well as Germany charged inheritance tax on the capital assets. Germany did not allow a deduction of the inheritance tax paid in Spain.
The BFH also asked the CJEU whether the plaintiff’s double taxation, which came about because there was no possibility of a deduction, would constitute a restriction of free capital movement. However, the CJEU did not consider this as restricting the freedom of capital movement. It argued that the two affected countries had legitimately practised their authority to tax inheritance, and that both countries were entitled to a certain autonomy. As long as common law was observed, this autonomy does not force a country’s tax system to adapt to the various tax systems of other member states, thus avoiding the possibility of double taxation.
Tax law is a complex subject, especially in view of possible double taxation and the various double taxation agreements. A lawyer experienced in tax law can help to answer legal questions.
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