Accumulating ETF penalty tax
November 13, 2014 | 40,00 EUR | answered by Anton Pernitschka
Dear tax expert,
I would like to trade 2 foreign accumulating ETFs that are not yet listed in the transparency list.
http://www.bzst.de/DE/Steuern_International/Auslaendische_Investmentfonds/Auslaendische_Investmentfonds_node.html
Proshares Ultra S&P 500, symbol SSO and Proshares Ultrashort S&P 500 symbol SDS
Do I also have to expect penalty taxation (6% of sales price + 70% of profit) following the ruling of the European Court of Justice (Case C-326/129)
(EU Court of Justice overturns German lump-sum taxation of non-transparent foreign funds)?
Sincerely,
Dear inquirer,
In the context of an initial consultation and your fee commitment, while observing the regulations of this forum, I would like to answer your question.
By judgment of 09.10.2014, the ECJ has determined that § 6 InvStG constitutes a restriction on the free movement of capital within the meaning of Article 63 TFEU, as this regulation does not allow the taxpayer to prove the actual amount of his income from a foreign investment fund that does not fulfill the notification and publication obligations of § 5 InvStG.
The FG Düsseldorf referred the matter to the ECJ with a request for a preliminary ruling on 03.05.2012. It is now required to implement the decision of the ECJ in the underlying dispute.
Furthermore, there are two other proceedings pending before the BFH concerning the legality of the taxation of shares in opaque foreign investment funds under § 6 InvStG (file nos. VIII R 27/12 and VIII R 36/12). The decision of the ECJ will also have to be taken into account in these proceedings.
According to the OFD Nordrhein-Westfalen of 24.10.2014 (brief information ESt 39/2014), there are no objections to suspending similar appeal proceedings.
In your case, it is likely that the so-called punitive taxation under § 6 InvStG will not apply based on the above criteria.
The response was based on your description of the situation. Missing or incorrect information regarding the actual circumstances can influence the legal outcome.
Sincerely,
Anton Pernitschka
Tax advisor
