In a decision dated June 26, 2013 (Doc No I R 48/12, original available here), the German Federal Fiscal Court (a court of last resort in Germany over tax and custom matters) was tasked with determining whether an “S” corporation (a US corporation that is a pass-through for US tax purposes but not for German tax purposes) is considered a US resident under the 2006 protocol of the German-US income tax treaty (the “Treaty”). Article 10, Paragraph 2 of the Treaty provides in part that if a German company pays a dividend to a US resident, German withholding tax imposed on the receipt of such dividend shall not exceed (i) 5% if the beneficial owner of the dividend is a company that directly owns at least 10% of the voting stock of company paying the dividend, or (ii) 15% in all other cases. Article 1, Paragraph 7 of the Treaty generally states that if “an item of income, . . . derived by or through a person that is fiscally transparent” pursuant to US or German law, then “such item shall be derived by a resident of a State to the extent that the item is treated for the purposes of the taxation law of such State as the income, profit or gain of a resident.”
In the case, the S corporation, a 50% shareholder of a German company, received dividends from the German company. The German court held that the S corporation was considered a US resident for purposes of the Treaty and thus subject to a reduced withholding tax rate of 5%. In interpreting Article 1, Paragraph 7 of the Treaty, the German Federal Fiscal Court determined that the two references to “resident” did not necessarily imply the same resident. The German Federal Fiscal Court determined that the income may be considered derived by “a resident of a State” (here, the S corporation) so long as the income is treated by the US as “profit or gain of a resident” (i.e., the shareholders of the S corporation). The German court reasoned that, because, under US federal income tax law, income derived by an S corporation is “income, profit or gain” of its shareholders, such items of income derived by or through the S corporation should be considered derived by a US resident. Accordingly, the German Federal Fiscal Court held that the S corporation was a “US resident” for purposes of Article 1, Paragraph 7.
Additionally, the German court had to decide whether the S corporation is the beneficial owner of the respective dividends although under US federal income tax law, the respective income is attributed to the shareholders of the S corporation. The withholding tax reduction to 5% under Article 10, Paragraph 2 of the Treaty is only granted if (inter alia) the beneficial owner of the dividends is a company. The German court came to the conclusion that the term “beneficial owner” is not defined in the Treaty and, hence, has to be determined under German law. Under German law, the S corporation, irrespective of its tax treatment in the US, qualifies as a corporation so that income of the S corporation must under German law be attributed to the S corporation itself – not to its shareholders. Therefore the dividends were paid to a US resident corporation as beneficial owner (i.e., the S corporation). As a consequence, the withholding tax reduction to 5% was granted.
Whether this case could be extended to other US entities is unclear. For example, a limited liability company provides corporate-like limited liability for its shareholders, but is fiscally transparent for US federal income tax purposes (unless a check-the-box election is filed for the LLC). Therefore, the holding of this case may apply to an LLC if German tax law classifies a US LLC as a corporation, which mainly depends on the content of the articles of association of the respective US LLC. However, this case should not apply to an entity that is a US partnership for state law purposes as, under Article 3, Paragraph 1 of the Treaty, a partnership is generally not treated as a “body corporate” and thus is not treated as the beneficial owner of dividends.
While in the case it was clear that the S corporation itself (and not its shareholders) could file for the refund, a recent change in German tax law enacted in 2013 may have changed this. However, the new provision in German tax law was not intended for cases such as US S corporations and the German tax authorities have not yet issued clear guidance on whether the S corporation or its shareholders should apply for the refund. For now it is therefore advisable for both the S corporation and its shareholders to file refund claims simultaneously to avoid a potential statute of limitations issue in the event that the German tax authorities interpret its refund provisions in a different manner.
Michael Graf, a partner in Dentons’ Frankfurt office specializing in Taxation, co-authored this article.