Germany referred to the EU Court of Justice for failing to eliminate discriminatory tax treatment of reinvested capital gains on the sale of German real estate

The European Commission decided to refer Germany to the Court of Justice of the European Union for failing to eliminate discriminatory tax treatment of reinvested capital gains on the sale of German real estate.

The Commission decided to refer Germany (INFR(2012)4037) to the Court of Justice of the European Union for having failed to remedy the infringement of the free movement of capital (Article 63 TFEU and Article 40 of the EEA Agreement) due to a discriminatory tax treatment of reinvested capital gains upon sale of real estate located in Germany. 

Germany grants a deferral of taxation for reinvested capital gains made on the sale of real estate located in Germany, provided that the real estate has been attributed to the fixed assets of a domestic permanent establishment (Betriebsstätte in Deutschland) for an uninterrupted period of at least 6 years. Corporations established in Germany, even without a business activity therein, are deemed to have such a permanent establishment at their place of management (i.e. in Germany). 

Comparable corporations established in other EU/EEA Member States are deemed not to have such permanent establishments in Germany. Hence, Germany denies to provide them with a tax deferral for reinvested capital gains from the alienation of German real estate. As a consequence, Germany violates the free movement of capital. 

The Commission sent a reasoned opinion to Germany in November 2019 and engaged in further technical exchanges with the German authorities. The Commission considers that efforts by the authorities have, to date, been insufficient and is therefore referring Germany to the Court of Justice of the European Union. More information is in the press release.  (source : europa.eu/photo freepik.com)

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George Kazoleas, Lawyer

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