I. History of tax treatment of restructuring profits

As already described in an article in our last newsletter, the tax treatment of restructuring profits in Germany has undergone a changeful history.
For several decades, book profits resulting from a waiver by creditors for the purpose of restructuring (so-called restructuring profits) were exempted from taxation by virtue of § 3 no. 66 German Income Tax Act (EStG) (1976). This provision was repealed by the law dated 29 October 1997 on the promotion of the corporate tax reform, primarily in order to eliminate the double advantage of exemption from restructuring profits on the one hand, and the largely unrestricted use of losses following the waiver by the restructured company, on the other hand.
However, since corporate restructuring should not be jeopardized by the taxation of these book profits, the tax authorities issued the so-called restructuring decree in March 2003. Accordingly, restructuring profits could be made “tax-free” in accordance with §§ 163, 227 German Tax Code (AO) if certain preconditions were met for reasons of equity.
At an early stage already, parts of the literature expressed doubts about the lawfulness of the restructuring decree. It was argued that the legislator had sufficiently expressed its intention to impose unrestricted taxation of restructuring profits by deleting § 3 no. 66 EStG (1976) without substitution in 1997 and that the tax authorities were not allowed to disregard this in the context of a lump-sum equitable measure. This was countered by the fact that the annulment of § 3 no. 66 EStG (1976) served only to eliminate the aforementioned “double dip benefit”. It would also be clear from various explanatory memoranda in which references are made to the restructuring decree, that the legislators knew and approved the practice of the tax authorities.
In November 2016, the Grand Senate of the BFH ended this long-standing debate. It categorized the restructuring decree as unlawful, among other things because of violations of the principle of the lawfulness of the administration, and furthermore judged that “typifying equity regulations in the form of subsumable facts” could be part of a legislative statutory provision alone and could not be regulated through administrative (decree) channels.
In response to this jurisdiction, both the legislator and the tax authorities took action in 2017. The Act Against Harmful Tax Practices In Connection With The Surrender Of Rights dated 27 June 2017 introduced new provisions in the German Income Tax Act and the German Trade Tax Act (e. g. § 3a EStG and § 7b German Trade Tax Act (GewStG)), which are intended to ensure the continued tax relief of restructuring profits. However, these new provisions only come into force after approval by the EU Commission and only cover cases in which the debts have been partially or completely waived after 8 February 2017, i. e. the date of publication of the above-mentioned resolution of the Grand Senate of the BFH. The reason for the lack of a transitional regulation for debt relief (so-called old cases) until 8 February 2017 is that the German Federal Ministry of Finance (BMF) had ordered the old legal situation to continue to apply by letter dated 27 April 2017 for reasons of legitimate expectations.
The First and Tenth Senate of the BFH have now, in two judgments dated 23 August 2017, file numbers I R 52/14 and X R 38/15, denied the further application of the restructuring decree to old cases which was granted on the basis of the letter of the German Federal Ministry of Finance (BMF) dated 27 April 2017.

II. Reasons for the judgment of the BFH

While the Tenth Senate stated briefly in its decision-making rationale of the judgment that nothing else could apply to the provisions on the legitimate expectations in accordance with section 1 of the BMF letter dated 27 April 2017 than to the restructuring decree itself, the First Senate deals in great detail with the problems of old cases and the concept of legitimate expectations.
The Court declares that the taxpayer’s legitimate expectations which are worthy of protection, can only be given if the basis of legitimate expectation is based on a sound legal opinion that speaks in favour of the taxpayer’s opinion and the legal situation does not appear doubtful. In the case of the restructuring decree, however, such a doubtless legal situation did not exist at any time, since concerns were expressed early in both literature and case law.
The court then examines, on the basis of the criteria laid down by the Grand Senate for the restructuring decree, whether the tax authorities have again violated the principle of the lawfulness of the administration by creating a general legitimate expectation in the letter of the BMF dated 27 April 2017. This is affirmed because the continued application of the restructuring decree and thus the granted legitimate expectations would not be based on unfairness according to the situation of the individual case, but would be applied without reservation. However, such typifying provisions on legitimate expectations are reserved to the legislator, just as typifying provisions on equity.
Finally, the Senate considered the new legal provisions of tax exemptions for restructuring profits. It points out that the provisions of the Income and Trade Tax Act require the consent of the EU Commission and are applicable only for debt relief measures that become effective after 8 February 2017. The legislator has therefore deliberately refrained from introducing transitional provisions for old cases.

III. Consequences for practice

The apparently present dispute between the tax authorities and the BFH is now being settled at the expense of the taxpayer. Based on the practical need to facilitate restructurings, the tax authorities wanted to help to prevent any tax burden that might hinder a restructuring. This was not successful and the taxpayer has to bear the consequences.
It is true that the whole issue is not a glorious chapter for the tax authorities. However, the jurisdiction, which is likely to be correct in this matter, has the final say and is therefore in fact responsible for the present situation. The trust in the entire public administration is thus extremely damaged. Of course, many taxpayers have already made arrangements with regard to the “transitional arrangements” of the tax authorities, which are also customary and have never been replaced so far.
At present, only old cases that have been agreed upon by means of binding assessments are likely to have security. From this it can generally be concluded for the future that any restructuring, and even if tax treatment is clearly provided for in the tax authorities’ regulations and letters, must be agreed by means of binding assessment. In the concrete matter of restructuring profits, only the legislator (at the request of the tax authorities) can now help and change the application rules for the new legislation, although this is likely to become rather difficult as the procedure for the recognition of the new legislation with the now inadequate application rules is already under way at the EU Commission from 8 February 2017 onwards.
By the way, it should be noted that it is not yet foreseeable what further consequences the general statement of the Grand Senate will have according to which typifying equity regulations in the form of subsumable facts can only be part of a legislative statutory provisions. Such equity provisions are often found in the decrees of the tax authorities (e. g. in the conversion tax decree) and there is now a particular risk of non-acceptance by the BFH.