On 21 June 2018 the German Federal Ministry of Finance has published the Draft Annual Tax Act 2018. If so enacted, capital gains on the sale of shares in real estate rich companies that own German properties will become subject to German tax. In particular, foreign investors are impacted by this new law.

Only half a year after the 2007 version of Section 50d (3) of the German Income Tax Act was declared as unlawful by the European Court of Justice (see our beinformed dated February 14, 2018), the current version has also suffered the same fate. As an anti-treaty-shopping rule, Section 50d (3) German Income Tax Act prevents, under certain conditions, exemptions or refunds of withholding taxes on dividends paid by German subsidiaries to their European parent companies. The European Court of Justice already decided on December 20, 2017, that the 2007 version of the Section 50d (3) German Income Tax Act violates both the Parent-Subsidiary Directive and the freedom of establishment (joint cases C 504/16 “Deister Holding” and C 613/16 “Juhler Holding”). On June 14, 2018, the European Court of Justice reached the same conclusion (C 440/17) with regard to the provision’s current version.

On 16 December 2016, the BaFin presented a draft of the circular relating to the investments of Solvency I insurers and pension funds for public consultation. The final version was eventually published with only minor amendments compared to the draft. However, said amendments are important for private equity funds.