Germany: German Federal Tax Court questions constitutionality of interest deduction limitation rule

International Tax Review is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Germany: German Federal Tax Court questions constitutionality of interest deduction limitation rule

Linn
Braun

Alexander Linn

Thorsten Braun

Germany's Federal Tax Court (BFH) referred a case to the Federal Constitutional Court (BVerfG) on February 10 2016 requesting a ruling on whether the interest deduction limitation rule violates the constitution (case ref. I R 20/15).

Introduced as part of the 2008 corporate tax reform, the rule restricting the deduction of interest applies to both shareholder loans and bank loans (that is, loans from related and unrelated parties). The rule limits the deduction of net interest expense (interest expense exceeding interest income) to 30% of the tax EBITDA. There are very limited exceptions to the rule, and its basic features are reflected in the OECD's BEPS Action 4 ('Limiting Base Erosion Involving Interest Deductions and Other Financial Payments') and in the European Commission's draft proposal for an anti-avoidance directive (COM(2016) 26 final).

The BFH initially expressed its doubts about the constitutionality of the interest deduction limitation rule in a decision issued in 2013 (case ref. I B 85/13 dated December 18 2013). However, the final decision on the constitutionality of the measure must be made by the BVerfG. Until this question is decided – which likely will take a few years – the tax authorities can continue to disallow full interest deductions based on the existing rule. Therefore, tax assessments should be kept open. Although the tax authorities likely will continue to apply the rule, tax assessments may be issued on a preliminary basis that would keep assessments open until the BVerfG issues its decision.

Should the BVerfG rule in favour of the taxpayer, a tax refund would trigger interest at 6% per annum, with the interest period starting 15 months after the relevant fiscal year. However, if the BVerfG determines that the interest deduction limitation rule is in line with the constitution, any preliminary tax assessments would become final.

Alexander Linn (allinn@deloitte.de) and Thorsten Braun (tbraun@deloitte.de)

Deloitte

Tel: +49 89 29036 8558 and +49 69 75695 6444

Website: www.deloitte.de

more across site & shared bottom lb ros

More from across our site

The arrival of a seven-strong team from Baker McKenzie will boost WTS Germany’s transfer pricing capabilities and help it become ‘a European champion’, the firm’s CEO said
Germany has forgotten to think about digital reporting requirements, a WTS partner claimed at ITR’s Indirect Tax Forum 2025
E-invoicing is currently characterised by dynamism, with fragmentation acting as a key catalyst for increasing interoperability, says Aida Cavalera of the International Observatory on eInvoicing
Pillar two and the US tax system ‘could work in harmony’, Scott Levine tells ITR in an exclusive interview to mark his arrival at Baker McKenzie
Peter White, who has a tax debt of A$2 million, has been banned for five years from seeking registration with Australia’s Tax Practitioners Board (TPB)
Wopke Hoekstra’s comments followed US measures aimed against ‘unfair foreign taxes’; in other news, Grant Thornton and Holland & Knight made key tax partner hires
An Administrative Review Tribunal ruling last month in Australia v Alcoa represents a 'concerning trend' for the tax authority, one expert tells ITR
A recent decision underlines that Indian courts are more willing to look beyond just legal compliance and examine whether foreign investment structures have real business substance
Following his Liberal Party’s election victory, one source expects Mark Carney to follow the international consensus on pillar two, as experts assess the new administration
A German economics professor was reportedly ‘irritated’ by how the Finnish ministry of finance used his data
Gift this article