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

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

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

AI and assisting clients with navigating global tax reform contributed to the uptick in turnover, the firm said
In a post on X, Scott Bessent urged dissenting countries to the US/OECD side-by-side arrangement to ‘join the consensus’ to get a deal over the line
A new transatlantic firm under the name of Winston Taylor is expected to go live in May 2026 with more than 1,400 lawyers and 20 offices
As ITR’s exclusive data uncovers in-house dissatisfaction with case management, advisers cite Italy’s arcane tax rules
The new guidance is not meant to reflect a substantial change to UK law, but the requirement that tax advice is ‘likely to be correct’ imposes unrealistic expectations
Taylor Wessing, whose most recent UK revenues were £283.7m, would become part of a £1.23bn firm post combination
China and a clutch of EU nations have voiced dissent after Estonia shot down the US side-by-side deal; in other news, HMRC has awarded companies contracts to help close the tax gap
An EY survey of almost 2,000 tax leaders also found that only 49% of respondents feel ‘highly prepared’ to manage an anticipated surge of disputes
The international tax, audit and assurance firm recorded a 4% year-on-year increase in overall turnover to hit $11bn
Awards
View the official winners of the 2025 Social Impact EMEA Awards
Gift this article