Process

Standardized documentation requirements have been agreed upon in the area of transfer pricing for multinational enterprises. These requirements were used to develop a three-level approach consisting of:

• An overview of the multinational enterprise’s business activity and its transfer pricing methodology (master file)
• Country-specific documentation of specific business transactions of the taxpayer with affiliated businesses (local file)
• The country-by-country report

At the latest, the obligated businesses send the country-by-country report to the BZSt one year after the end of fiscal year for which the country-by-country report is being generated. Reports must be created for fiscal years that start after 31 December 2015.

The country-by-country report must be provided as an officially mandated data record that complies with the OECD’s XML Schema (see Section 138a (6) sentence 1 Abgabenordnung (AO – Fiscal Code)).

The following group data must be transmitted to BZSt by the obligated businesses:

1. An overview of how the group’s business activities are distributed among the tax jurisdictions where its businesses or permanent establishments are engaged in business activity – broken down by tax jurisdiction. To this end, the overview shall show the following information, based on the group’s consolidated financial statements:

   • Sales and other income from business transactions with affiliated businesses
   • Sales and other income from business transactions with non-affiliated businesses
   • Total sales and other income in accordance with letters a) and b)
   • Tax on earnings paid during the fiscal year
   • Tax on earnings paid and accrued during the fiscal year for that fiscal year
   • Profit (loss) before tax on earnings
   • Net assets
   • Retained earnings
   • Number of employees
   • Tangible assets
2. A list of all the key business activities of all business units of the multinational group that are recorded with various information, by tax jurisdiction. The list must specify the established tax jurisdiction of the group units and the country where they are established or the country where they are entered on the commercial register, if different from the country of establishment.

3. Key business activities are:

   • Research and development
   • Ownership or management of intellectual property
   • Purchasing or procurement
   • Processing or production
   • Sales, marketing or distribution
   • Administration, management or support services
   • Providing services for unrelated third parties
   • Intra-group financing
   • Regulated financial services
   • Insurance
   • Ownership of shares or other securities of a participatory nature
   • Inactivity
   • Other

BZSt forwards the country-by-country report to the respective participating countries. In return, BZSt receives data from the participating countries. The data held by BZSt is then transmitted to the competent land revenue authorities.

There are no plans to publish information from the country-by-country reports.

Businesses subject to reporting requirements

Pursuant to Section 138a (1) AO, the following businesses are subject to reporting requirements:

• Businesses with headquarters or management in the territory of the country (domestic businesses)
• that prepare consolidated financial statements or that must prepare them in accordance with rules other than taxation laws (domestic group parent) and
• whose consolidated financial statements include at least one foreign business or a foreign company or one foreign permanent establishment and
• whose consolidated sales in the previous fiscal year is equal to at least EUR 750 million as shown in the consolidated financial statements.

Such businesses subject to reporting requirements must prepare a country-by-country report of this group and send it to BZSt.

There is no obligation if the domestic business is controlled by another business and included in its consolidated financial statements.

Reporting can be commissioned pursuant to Section 138a (3) AO.

Commissioning reporting pursuant to Section 138a (3) AO

If the consolidated financial statements of a foreign business, which under the provisions of (1) would be required to submit a country-by-country report if its headquarters or management are in Germany (foreign group parent), cover a domestic business (covered domestic group company), and if the foreign group parent commissions the covered domestic group company with submitting a country-by-country report for the group (reporting company), then the reporting entity must send the country-by-country report to BZSt.

Incomplete reports pursuant to Section 138a (4) AO

If BZSt will not receive a country-by-country report by a foreign group parent from a foreign authority, then each covered domestic group company is required to send any incomplete country-by-country report for this group.

If a country-by-country report is sent to BZSt by one of these domestic group companies, then this requirement is waived for all other group companies.

Temporal guidelines

German businesses subject to reporting requirements must transmit the country-by-country report no later than one year after the end of the fiscal year for which the country-by-country report is being generated. The country-by-country reports must be prepared for fiscal years that start after 31 December 2015.

Incomplete reports pursuant to Section 138a (4) AO shall be sent for the first time for fiscal years that start after 31 December 2016 (see Section 31 Einführungsgesetz zur Abgabenordnung (EGAO – Introductory Act to the German Fiscal Code)).

Information on data transmission

The data must be transmitted via the ELMA mass data interface via the BZSt online portal or by file upload.

Legal basis

On 5 October 2015, the OECD published the results of the Base Erosion and Profit Shifting (BEPS) joint project by G20 and OECD, which proposed a package of measures against base erosion and profit shifting.

BEPS action 13 stipulates the preparation of country-by-country reports for multinational enterprises and their automatic exchange of information (“country-by-country reporting”). Further information can be found on the OECD’s website.

On 8 December 2015 (Directive (EU) 2015/2376) and 25 May 2016 (Directive (EU) 2016/881), the EU Member States resolved the corresponding changes to the EU Mutual Assistance Directive, which implements this BEPS recommendation on country-by-country reporting as a standard within the EU.

With the “Act on Implementing the Changes to the EU Mutual Assistance Directive and Other Measures against Base Erosion and Profit Shifting" (BEPS Implementation Act, BGBl. I 2016, 3000), the BEPS recommendation on country-by-country reporting was put into national law through the inclusion of Section 138a AO.

Country-by-country reports are exchanged with third parties on the basis of the Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports (CbC MCAA) signed on 27 January 2016, which was put into national law by ratifying the “Act on the Multilateral Agreement of 27 January 2016 between the competent authorities on the exchange of country-by-country reports of 19 October 2016” (BGBl. I page 1178).

Further details can be found on the German Federal Ministry of Finance website.