Germany: Moving Into And Out Of Germany – When The Fiscal Authorities Reach Their Limits

Last Updated: 9 July 2018
Article by Maximilian Haag

For many coming from other countries, Germany is an attractive country to which to move. At the same time, each year thousands of people leave Germany for a limited period of time or permanently. German tax law until today has difficulties with the proper treatment of these multiform cases of natural persons moving into and out of Germany.

One of the key questions when moving into or out of Germany is related to the broad German concept of residence for tax purposes (Sec. 8 German Fiscal Code). With the recently revised version of the application ordinance for Sec. 8 German Fiscal Code of 7 August 2017, the fiscal authorities have increased legal certainty in regard to the requirements needed to establish a residence for tax purposes in Germany.

German Federal Constitutional Court has given green light to so called "treaty overrides"

In a judgement of 15 December 2016, the German Federal Constitutional Court has recognized the admissibility in terms of constitutional law of the so-called treaty override. German provisions such as Sec. 50i Income Tax Act and Sec. 20 Foreign Tax Act, which take precedence over the Double Taxation Agreements (DTA) entered into by Germany, are thereby to be accepted. The treaty override stipulated by Sec. 20 Foreign Tax Act is, however, to be understood such that it does not set aside the tax residency rules of the respective DTA. A taxpayer who has moved to Germany but continues to be considered resident abroad according to the applicable DTA, is therefore neither subject to German CFC rules (Sec. 7 et seq. Foreign Tax Act) nor to CFC-like attribution taxation for foreign foundations and trusts (Sec. 15 Foreign Tax Act).

With an amendment dated 25 June 2017 of Sec. 16, para. 2 of the German Inheritance and Gift Tax Act, the legislator has managed (on the second attempt) to find a revision of the tax-free allowance in cases of limited inheritance tax liability that conforms to European law from which some taxpayers who live out of Germany can benefit .

In moving to Italy, since 1 January 2017 "income millionaires" have the opportunity to opt for preferential Italian tax treatment which disregards the actual annual income of the taxpayer. From a German perspective, however, one must consider that in relation to Italy – just as it has in relation to Switzerland and Great Britain – Germany has reserved the application of German expanded limited income tax liability (Sec. 2 Foreign Tax Act) under treaty law.

Further questions arise under the German exit taxation concept (Sec. 6 Foreign Tax Relations Act). In a tax act effective 1 January 2007 the legislator had included investments in foreign corporations in the German exit tax. Nevertheless, if a decision of the German Federal Constitutional Court dated 7 October 2010 on the taxation of capital gains from the disposal of qualified shareholdings is taken seriously, those hidden reserves in qualified investments in foreign corporations which had already accrued before 1 January 2007 should not be subject to German exit taxation.

The applicability of the EU deferral rule of the German exit tax (Sec. 6 para. 5 Foreign Tax Relations Act) in moving to Switzerland is currently being disputed. With a decision of 14 June 2017, the Fiscal Court of Baden-Württemberg has submitted the question to the European Court of Justice (ECJ) for a decision on whether an immediate levying of the German exit tax is compatible with the existing freedom of movement treaty between the EU and Switzerland. As long as the ECJ has not yet settled this question, the fiscal authorities do not grant interest-free deferral when moving to Switzerland.

The revised version of Sec. 50i Income Tax Act as of 1 January 2017 is also worthy of mention. If a taxpayer contributed a qualified shareholding in terms of Sec. 17 Income Tax Act at book value to a German GmbH & Co. KG (limited partnership) that is deemed commercial under German national tax law, and thereafter moved to a foreign country before 1 January 2017, the profits from a subsequent sale of shares remain subject to German taxation, regardless of a contradictory DTA (Sec. 50i para 1 pg. 1 Income Tax Act: treaty override). Whereas if the taxpayer moved only after 31 December 2016, according to the concept of the new Sec. 50i para 1 Income Tax Act, at the time of the move the German exit tax for non-corporate business assets pursuant to Sec. 4 para 1 pgs. 3 and 4 Income Tax Act will apply to the hidden reserves held in the shares. Under this distinctive exit taxation concept, there is no unlimited tax deferral for EU cases but only a split of the tax into five annual installments might be possible.

Brexit has far-reaching consequences for taxpayers

Ultimately, the expected exit of Great Britain from the EU in 2019 will have far-reaching consequences for persons moving out of Germany: When EU citizens move to Great Britain, as well as when British nationals move to EU or non-EU foreign countries, it is expected that in the future the EU deferral rule of the German exit tax will no longer be granted. For this reason, when "Brexit" comes into effect, the revocation of interest-free deferral threatens a series of exit cases from the past. For those moving from Great Britain to Germany, after "Brexit" there is a threat of the loss of EU exemptions within the scope of the German CFC rules (Sec. 7 et seq. Foreign Tax Relations Act) and the German CFC-like attribution taxation for foreign foundations and trusts (Sec. 15 Foreign Tax Relations Act).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions