Teutonic Tricks Germany Becomes Tax Haven for Firms and Wealthy

German Finance Minister Peer Steinbrück has been railing against tax havens such as Switzerland and Luxembourg with harsh rhetoric. But he has paid too little attention to completely legal loopholes -- such as having subsidiaries on Malta -- that allow German corporations and the ultra-rich to minimize their tax burdens.
Von Beat Balzli und Michaela Schießl

The Swiss are essentially a placid people. But for the past few months, two words have been sufficient to transport them into a state of agitation: Peer Steinbrück.

They have referred to the German finance minister as "Peitschen Peer" ("Whip Peer"), ever since he threatened to call in the cavalry  unless Switzerland, traditionally a tax haven, cooperated with other countries. Even Luxembourg Prime Minister Jean-Claude Juncker, whose country Steinbrück also included in his verbal attack, feels deeply offended.


Photo Gallery: Tax Haven Germany

Foto: ddp

Only one person is pleased with these reactions: Steinbrück himself.

"It wasn't only friends that I made during the fight against tax havens," he says. However, he adds, it was important to "sail against the wind and stay on course in this effort." But now Steinbrück lacks more than popularity. Now he also needs money. Last week, Germany's Federal Statistical Office reported a national deficit of €17.3 billion ($24.8 billion) for the first half of 2009.

Completely Legal

But the minister's rage against tax havens risks obscuring a much bigger problem: A completely legal tax avoidance industry is flourishing right at home in Germany. It is an industry that thrives on the mistakes made by ministries and the parliament in drawing up tax legislation. And hardly any other industry is as successful, irrespective of the current economic situation, or operates as efficiently.

While ordinary German workers are at the mercy of the tax authorities, millionaires and corporations use aggressive tax models to make themselves appear to be artificially poor -- and it's completely legal. In fact, seminars on "International Tax Structuring" are even tax-deductible in Germany as professional training.

What the national treasury loses in the process is far from insignificant. The German Institute for Economic Research (DIW) has calculated that there is a gap of €100 billion between the demonstrated profits of corporations and partnerships and the profits they have reported for purposes of taxation. "This points to tax breaks and structuring options with which companies can lower their taxable profits or shift them abroad," writes the DIW.

In fact, German corporations structure their international subsidiaries in such a way that the most profitable ones are located in the countries with the lowest tax rates. Corporate tax paid by corporations makes up only 2.8 percent of the government's total tax revenues of €561 billion. Germany's army of wage-earners contributes the largest share.

"Germany is a tax haven for large companies," says Wiesbaden-based economist Lorenz Jarass. "People with normal incomes are being robbed."

Toothless Tiger

Steinbrück isn't so keen to discuss this injustice. He prefers to draw attention to his latest coups in the fight against tax havens: Belgium and Luxembourg have agreed to release information about potential tax evaders. And Swiss representatives will arrive in Berlin on Sept. 8 to negotiate a new double-taxation treaty that provides for increased mutual assistance between Swiss and German authorities.

This is undoubtedly progress. But another one of Steinbrück's prestigious projects has already failed: The interest-rate barrier that limits the tax deductibility of interest costs for businesses has been relaxed.

He was also forced to make concessions on the tax evasion law passed in July. Instead of leaving it solely up to the finance minister to determine which countries are to be ostracized as tax havens, the Foreign Ministry and Economics Ministry will also be involved in such decisions in the future. However if a country is classified as a tax haven, it will mean that investors and companies doing business there will be subject to stricter requirements regarding providing tax-related information.

Corporations have little to fear from such a toothless tiger. They maintain entire departments for the sole purpose of optimizing their tax situation. In their international web of subsidiaries, they manage to control the internal flows of money with the help of three adjusting mechanisms: interest payments, license fees and transfer prices.

It works in the following way: Swiss subsidiaries charge their German parent company high fees for the use of patents or charge prices higher than the cost price for product shipments. The resulting profits are earned in the tax havens.

However Dieter Ondracek, head of the German Tax Trade Union, claims some of these problems have already been fixed. "Many of these loopholes were plugged with the 2008 corporate tax reform," he says.

Financial Monopoly

Tax expert Hanno Berger, for one, finds that argument laughable. Berger, a stout man in his late fifties with a construction worker's handshake, spent 14 years auditing Frankfurt banks for the German tax authorities -- until he succumbed to the lure of private industry. Nowadays, he sits in his office on the 31st floor of the Skyper building in Frankfurt and designs tax savings models for the ultra-rich and large corporations.

Berger's trademark is zero taxes for multi-millionaires. He is considered the king of the industry. With the skyline of Frankfurt's financial center as a backdrop, he uses a flipchart to illustrate his most successful structures -- those with tax-free returns of up to 10 percent. For Berger, finding ways to beat the tax system is an "athletic and intellectual challenge." Is it his problem that Berlin enacts amateurish laws? It's no wonder that the Finance Ministry sees Berger as one of its greatest enemies.

Of course, Berger is also familiar with the latest mecca for Germans seeking to optimize their tax structure: Malta. In the global game of financial Monopoly, the small Mediterranean country has become one of German industry's preferred locations in the time since it joined the European Union in 2004.

Companies like Lufthansa, Puma, BASF, K+S and Fraport have their offices in the town of St. Julian's, near the "Stiletto Gentleman's Club" and the pubs where foreign language students drink themselves into oblivion. The offices of the BMW Malta Group are near the casino in the upscale Portomaso waterfront development.

"The number of companies in Malta is growing rapidly," says Andrew Manduca, a partner in the accounting firm Deloitte Malta. He avoids using the term tax haven. "Companies pay a 35 percent tax rate here, which is more than in Germany." Technically, this is correct, but in a second step, shareholders can apply for a refund of the bulk of those taxes. On balance, profit distribution in the form of dividends is taxed at only 5 percent. After taxation, the net dividends are returned to the coffers of the German parent companies -- 95 percent tax-exempt, thanks to the decisions of the former Social Democratic and Green Party coalition government under former Chancellor Gerhard Schröder.

No one seems to be troubled by the fact that this loophole deprives the German treasury of massive amounts of revenue. On the contrary.

Last summer, Germany's ambassador to Malta invited German banking executive Frank Krings -- now a member of the management board of the troubled mortgage lender Hypo Real Estate -- to his private residence for a meeting with representatives of subsidiaries of German companies. Krings apparently liked what he heard. The local media has reported that banking giant Deutsche Bank plans to expand its business in Malta this year.

'The State Is Lagging Hopelessly Behind'

Methods like the Malta loophole work in part because of international double taxation agreements, or DTAs. In these agreements, two countries stipulate in which of the two taxes will be assessed, so as to avoid double taxation. Providers of closed investment funds have discovered the benefits of DTAs. They offer investments in British life insurance, Romanian forestry operations and Spanish solar plants. Thanks to DTAs, German investors only pay taxes on their foreign investments in the respective countries.

The finance committee in the German parliament, the Bundestag, is kept informed about all DTAs, but this does little to address the underlying problem. "Under most tax savings models, the state is lagging hopelessly behind," says Axel Troost, a financial expert with Germany's Left Party.


Photo Gallery: Tax Haven Germany

Foto: ddp

One of the biggest tax scandals in postwar history illustrates how expensive it can get when politicians are hoodwinked by the machinations of high finance. The process was known as "EX/CUM trade" in bankers' jargon. The trick was so daring that it even made officials at the Association of German Banks queasy.

On Dec. 20, 2002, the bankers alerted the Finance Ministry about the problem. They described a systemic error in the sale of borrowed shares near the ex-dividend date of German corporations. Because of a blind spot in the market transaction system, the original owners of the shares and the buyers receive a statement on the capital gains tax from the respective custodian banks. This enables both parties to claim a refund on the tax, even though it was only paid once.

Out of Reach

Despite this obvious problem, it took a long time for Berlin to react. For another four years, the proprietary trading departments of German banks and wealthy private customers, in particular, fraudulently obtained additional tax statements and submitted them to the tax authorities so that they could claim tax refunds. The German Finance Ministry did not close the loophole until the fall of 2006. According to the ministry, "the current administration, immediately after coming into office in early 2006, drafted legislation to address the issue, which came into effect at the end of 2006."

But this had only solved the problem at the national level. The bank association's warnings that sales through foreign institutions remained "out of reach" were ignored. As a result, the game went merrily along through foreign banks -- until a fired executive of the US investment bank J.P. Morgan allegedly disclosed the full scope of the tricks to officials in Berlin this spring.

A loss totaling in the billions, which had apparently accumulated over several years, was later mentioned in the Bundestag finance committee. Nevertheless, it took the Finance Ministry until May to issue a directive requiring auditors to certify that submitted tax statements were clean.

'Excessive' Requirements

But can the government even win this constant cat-and-mouse game? How can the tax officials be brought up to speed with the highly specialized tax model wizards?

One method, common in the United States and Britain, is to introduce a reporting requirement for tax savings models. This would give the tax authorities advance notice of potential loopholes and enable them to react immediately. The subject was given favorable attention in the Bundestag's finance committee in 2007. "But then the proposal suddenly disappeared," says Green Party Bundestag member Christine Scheel, the champion of the early warning system. Members of Steinbrück's staff justified dropping the proposal by claiming that the reporting requirement contradicted "the goals of reducing bureaucracy."

Tax expert Hanno Berger is extremely pleased with the outcome. He believes that a reporting requirement would be "excessive." In fact, Berger feels that many things are excessive, including Steinbrück's primitive method of amending laws retroactively.

He cites the example of foreign family foundations. Steinbrück wants to amend a paragraph in the German Foreign Transaction Tax Act so that negative income can no longer be claimed to reduce tax liability -- and he wants to do so retroactively, spanning several decades. Even Franz Wassermeyer, a former judge on the Federal Tax Court, says: "This is a catastrophe. It's scandalous."

The Finance Ministry takes a different view of the issue: "Only if the retroactive application is required only in exceptional cases and is consistent with the rulings of the Federal Constitutional Court will it be included in the draft legislation."

Customized Models

The truth is that the retroactive application of laws eliminates all legal certainty. Besides, by constantly issuing new directives the Finance Ministry is practically playing the role of lawmaker, thereby circumventing the separation of powers. "This is unconstitutional," Berger complains. "When it comes to tax law, we are living in a banana republic," he says, referring to laws that he claims have been put together in dilettantish ways.

Such laws do in fact exist. For instance, the new Paragraph 15b of the Income Tax Act prohibits "tax deferral models" which are based on a ready-made approach. But this provision likely applies only to standardized financial products for small investors. The ultra-rich have models customized to suit their needs and, according to a decision by the tax court in the southwestern state of Baden-Württemberg, are not subject to the new paragraph of the law. The Finance Ministry, for its part, argues: "It does not follow from the cited decisions that Paragraph 15b of the Income Tax Act should be inapplicable."

Such inadequacies abound in the complicated German tax system. Only a drastically simplified system without significant deduction options, as Heidelberg tax professor Paul Kirchhof advocates, would truly hurt Berger's industry.

Slim Prospects

Lorenz Jarass, also a tax professor, proposes an even more radical solution: to reduce taxes and simultaneously expand the assessment basis. "All added value that is generated domestically should also be taxed domestically," says Jarass.

This would put an end to the diversion of profits abroad, and the interest on debt and license fees paid in tax havens would no longer be deductible.

But the prospects of reform are slim. Malta, Cyprus, Ireland and Britain fiercely oppose approaches at the EU level. And the will to bring about change is absent in Germany. "The tax simplification debate has been going on for years, and it has led to nothing," says Green Party expert Christine Scheel.

Politicians are only too pleased to abuse tax law for their benefit. "Tax law is basically election handout law," says Scheel, who characterizes it as an enormous playing field for lobbyists and political parties. "No one wants to give up this room for maneuver."

Translated from the German by Christopher Sultan

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