I. Development of non-profit law

Most of non-profit law dates back to the 1970s and has recently undergone a more comprehensive revision as a result of the Act to Strengthen Volunteerism (Ehrenamtsstärkungsgesetz) of 21 March 2013. After a period of seven years since the last reform, the Annual Tax Act (Jahressteuergesetz) 2020 contains some important legislative changes, which came into force the day after its promulgation, i.e. on 29 December 2020.

II. Reform measures

1. Expansion of the catalog of non-profit purposes as well as special-purpose entities (Zweckbetriebe)

In sec. 52 German Fiscal Code (Abgabenordnung – AO), the legislator lists the non-profit purposes it considers worthy of support (so-called non-profit catalog purposes), such as the promotion of science and research. This catalog of non-profit purposes was expanded to include other areas as part of the reform. The new purposes worthy of support include climate protection, aid for those persecuted for political, racial or religious reasons, and the preservation of local history (the list is not complete at this point; for details, see sec. 52 para. 2 nos. 8, 10, 22, 23 and 26 AO).
In addition, the narrowly interpreted exemption provisions on so-called special-purpose entities (Zweckbetriebe) (sec. 65, 68 AO) have been supplemented. These allow non-profit corporations to engage in economic activities without jeopardizing their non-profit status. The two special-purpose entities (Zweckbetriebe) added to sec. 68 AO relate to the areas of remunerated care, catering and support for refugees (sec. 68 no. 1 letter c AO) and the remunerated provision of care for mental and psychological illnesses or disabilities (sec. 68 no. 4 AO).

2. Cooperation between non-profit organizations

Sec. 55-57 AO specify the manner in which tax-privileged purposes must be pursued by non-profit corporations. In addition to selflessness (Selbstlosigkeit, sec. 55 AO) and exclusivity (Ausschließlichkeit, sec. 56 AO), sec. 57 AO stipulates the direct pursuit of purposes, according to which purposes worthy of support can be pursued directly either by the company itself or with the help of auxiliary persons (sec. 57 para. 1 AO). The newly added sec. 57 para. 3 AO contains for the first time statements on possible cooperations of non-profit organizations. Thus, it is not contrary to the prescribed “direct” pursuit of purposes within the meaning of sec. 57 para. 1 AO if non-profit corporations realize tax-privileged purposes through planned cooperation. Accordingly, pure service companies may also be directly engaged in non-profit activities, provided that their services are rendered to other non-profit entities.
Up to now, it happened that a corporation, which cooperated with another corporation in order to realize a tax-privileged purpose, was not recognized as a tax-privileged corporation itself. This affected (group) service companies, among others, as they regularly did not fulfill the principle of immediacy (Unmittelbarkeit) of sec. 57 AO. This “direct activity” is now legally deemed to exist if a corporation “realizes a tax-privileged purpose in accordance with its statutes through planned cooperation with at least one other corporation that otherwise fulfills the requirements of sec. 51 to 68 AO” (sec. 57 para. 3 sentence 1 AO). Following an amendment to the statutes required in this respect, group/subsidiary/service or other companies that were previously subject to taxation may in future be recognized as non-profit entities. Accordingly, the explanatory memorandum to the Act cites the relationship between a non-profit hospital operator and an (outsourced) hospital laundry (service company) as an example of cooperation within the meaning of sec. 57 para. 3 AO. This also demonstrates the cross-organizational approach to redefinition, which comes into play when assessing economic activities within a cooperative network. Pursuant to sec. 57 para. 3 sentence 2 AO, the laundry (service company) and the hospital company provide their services as part of a special-purpose operation pursuant to sec. 67 AO. Laundry services rendered to third parties, on the other hand, are to be assigned to a taxable economic business operation (sec. 64 AO).
According to sec. 57 para. 3 AO, a corporation can thus also be directly active in a non-profit capacity if it cooperates with at least one other non-profit corporation as planned. However, a strict link to the non-profit statutory purpose is required, i.e. the cooperation must be “in accordance with the statutes” and for the fulfillment of the tax-privileged purposes. Existing service companies should therefore examine whether an amendment to the statutes is necessary.

3. Group structures

For a variety of reasons, it can make sense in practice to transfer and spin off the non-profit operational business to subsidiaries (often non-profit limited liability companies (Gesellschaft mit beschränkter Haftung – GmbH). In order to comply with the immediacy principle (Unmittelbarkeit) of sec. 57 AO, a holding company previously had to either engage in its own beneficiary activity, use auxiliary persons within the meaning of sec. 57 para. 2 AO (e.g. tax-privileged subsidiaries) or act as a sponsor within the meaning of sec. 58 no. 1 AO. Corresponding constructs will no longer be necessary in the future, as a “direct realization of a purpose” will be deemed to exist if a corporation exclusively holds and administers shares in tax-privileged corporations (sec. 57 para. 4 AO new version). Accordingly, group parent companies may hold non-profit status even if they do not have their own operating or promotional non-profit activities.

4. Transfer of funds between non-profit entities

An important change for practice concerns the regulations on the tax-exempt activities of a non-profit corporation. The restrictions on the transfer of funds between non-profit corporations previously contained in sec. 58 no. 1 and no. 2 AO (old version) are now combined in sec. 58 no. 1 AO. In this context, the restriction in terms of amount, according to which a corporation may only “partially” transfer its funds to another, likewise tax-privileged corporation, was completely deleted. According to the new version of sec. 58 no. 1 AO, which has been in force since 29 December 2020, the exclusive transfer of funds to other non-profit entities no longer jeopardizes the tax status in principle. However, if the transfer of funds is the only way of fulfilling the purpose, this must be stated accordingly in the statutes (sec. 58 no. 1 sentence 4 AO).
In addition, sec. 58 no. 1 AO clarifies for the first time that “funds” within the meaning of this provision include all assets of a corporation, consequently all other assets in addition to cash and bank assets. According to the explanatory memorandum, this also includes the transfer of use (free of charge or at a reduced price) or the provision of services (free of charge or at a reduced price).
In addition, a new sec. 58a AO creates a statutory trust protection provision in favor of tax-privileged corporations that pass on funds in good faith to another corporation for the realization of tax-privileged purposes. If the receiving corporation proves its own non-profit status at the time of forwarding the funds by means of a confirmation from the tax office, the granting corporation is classified as worthy of protection, even if the recipient corporation is subsequently not granted or is denied non-profit status or does not use the funds received for tax-privileged purposes (sec. 58 a para. 1 and 2 AO). According to sec. 58 a para. 3 AO, however, there is no protection of legitimate expectations if the donating corporation was aware of the incorrectness of the submitted notice or was not aware of it due to gross negligence or if the granting corporation caused the receiving corporation to use the notice for purposes that are not tax-privileged.

5. Grants to foreign entities

Another innovation concerns the promotion of foreign non-profit organizations that are subject to limited tax liability in Germany due to domestic income. These organizations must now also be tax-privileged in Germany in accordance with sec. 58 no. 1 sentence 3 AO. Previously, this requirement only applied to corporations with unlimited tax liability, i.e. those resident for tax purposes in Germany (sec. 58 no. 1 half sentence 2 AO old version). This new regulation may raise some problems, because it may be difficult for (foreign) organizations to fully meet the requirements for non-profit status due to the strictness of the statutes under German law.
With immediate effect, it is necessary to determine in advance whether the foreign corporation is subject to limited tax liability in Germany due to domestic income and, if so, whether the aforementioned requirements are met. If, on the other hand, the foreign corporation does not generate any domestic income, it must be ensured – as was already the case – that the corporation pursues non-profit purposes as defined by German law. For the latter cases, therefore, nothing has changed as a result of the reform.

6. Exception to the requirement of timely application of funds

Non-profit corporations must in principle use their funds (subject to the limited formation of reserves pursuant to sec. 62 AO) for their statutory purposes in a timely manner, i.e. at the latest in the two calendar or financial years following the inflow (sec. 55 para. 1 no. 5 AO). Since the reform measures came into force (29 December 2020), there has been an exception to this requirement, namely for small non-profit entities whose annual income does not exceed EUR 45,000 (sec. 55 para. 1 no. 5 sentence 4 AO). This simplification is to be welcomed from the perspective of small non-profit entities. However, it should be noted that the exemption relates purely to the timing of the requirement to use funds. The fundamental obligation to use all funds for the non-profit statutory purposes (sec. 55 para. 1 no. 1 sentence 1 AO) continues to apply without exception and regardless of the aforementioned de minimis limit.

7. Strengthening of voluntary commitment

In addition to the reform measures at the level of non-profit organizations, the limits for tax recognition of volunteer work and the law on donations were adjusted. The annual honorary office lump sum increases from EUR 720 to EUR 840, the exercise leader allowance from EUR 2,400 to EUR 3,000 (sec. 3 no. 26 and no. 26a EStG). The limit for the simplified proof of donation by cash deposit receipt or booking confirmation of a credit institution (sec. 50 para. 4 German Income Tax Implementing Regulation (Einkommensteuer-Durchführungsverordnung – EStDV)) was raised from EUR 200 to EUR 300; this change already applies to donations as of 1 January 2020.

III. Conclusion

The reform of non-profit law, which is outdated in many places, is very welcome overall. Even if not all ambiguities and points of criticism have been eliminated, the amendments and additions to the law lead to an overall improvement of the non-profit law framework. The transfer of funds among non-profit entities was made legally secure. Non-profit service companies as well as holding structures can now rely on uniform and mostly clear guidelines.