Eigenkapitalähnliche Genussrechte und Effektivität der neuen deutschen Hinzurechnungsbesteuerung – Fallstudienanalyse und Folgerungen

Using Germany as an example, this article analyzes whether the participation of a taxpayer with equity-like profit participation rights in a Controlled Foreign Company (CFC) will be subject to CFC taxation. In this respect, various participation structures of the taxpayer in the CFC, including equity-like profit participation rights, are examined by way of a case study analysis. It can be demonstrated that certain indirect participations of the taxpayer in the CFC using equity-like profit participation rights are not covered by CFC taxation. In the case of such ownership structures, the rules on CFC taxation currently have structural weaknesses regarding the inclusion of passive income. To neutralize this weakness, a legal solution is developed. This study and its results are of fundamental relevance, as the EU Anti-Tax Avoidance Directive (ATAD)/Directive (EU) 2016/1164 has been implemented in all Member States.