A survey conducted by the DIHK in mid-2023 among more than 3,500 companies in Germany shows that plans for industrial relocation are intensifying.

Nearly one-third of industrial companies (31.7%) are planning or already implementing the relocation of capacity abroad or the reduction of domestic production in response to energy policy conditions.

And as understandable as these economic considerations may be, these companies may still face an additional risk from a tax perspective: namely, the taxation of this relocation of functions! A “transfer of functions” within the meaning of Section 1(3b) of the Foreign Tax Act (AStG) is defined as the “transfer” of an economic function located in a specific country (in this case, Germany) to another country.

The prerequisite, therefore, is that a function is transferred from a transferring company to a receiving company, and that assets or other benefits are utilized or transferred in the process.

Examples of “functions” in this context include: business activities consisting of management, research and development, procurement, warehousing, production, packaging, sales, assembly, processing or finishing of products, quality control, financing, transportation, organization, administration, marketing, or customer service (see para. 3.89).

The transfer of functions requires a reduction in functions, up to and including the discontinuation of functions, at the transferring company. This also includes the transfer of functions and risks from a company with a high function and risk profile to a company with a low function and risk profile, but does not include the duplication of functions.

Valuation

A so-called “transfer package” must be determined for the transfer of these operational functions. A transfer package refers to the expected financial benefit of this operational function, which is derived from a business valuation using a net present value-based method that is recognized as a valuation standard and is also commonly used in ordinary business transactions for non-tax purposes. In particular, the income approach and the DCF method are relevant here.

The taxes to be taken into account when determining financial surpluses are the taxes on the income of the respective enterprise that are expected to be assessed or have actually been assessed and paid, reduced by any applicable tax credits. The nominal tax rate is irrelevant. In the case of corporations, the shareholders’ personal income taxes are not taken into account. In the case of partnerships, the personal income taxes of the partners generally cannot be disregarded. As a general rule, however, the taxes to be recognized may be set at the amount of the income taxes that would have been incurred if corporations, rather than partnerships, had been involved in the transfer of functions. A (potentially notional) tax burden on profit distributions is not to be taken into account.

Capitalization interest rate

The appropriate capitalization rate represents the return on an alternative investment that is equivalent to the subject of the valuation in terms of duration, risk, and taxation. Depending on the specific valuation method chosen, either the return on equity or the return on equity and debt must be taken into account. To determine the capitalization rate, the risk premium method should be used. Under this method, the capitalization rate is broken down into its components: the base interest rate and the risk premium. The risk premium is calculated as the product of the market risk premium and the beta factor. For the period of a perpetual annuity, a growth discount must be factored into the capitalization rate.

You can find an official example of the calculation here:

This value of the transfer package is taxable at the “transferring” company; thus, the transfer of functions from a German company to a foreign subsidiary initially triggers a tax liability, even though the future earnings on which the valuation is based have not yet been generated.

Although the ATAD II Directive has mitigated this problem in the European context by requiring the receiving country to recognize the same value as depreciable acquisition cost, significant issues can still arise in third-country cases if valuation approaches are treated differently across countries. Are you considering relocating your business operations abroad?