Regulation on the application of the foreign comparison principle to establishments according to Article 1 (5) of the German Foreign Tax Act (Ordinance on the Occupational Regulations for Profit-Sharing-BsGaV-Ordinance on the Occupational Activities

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BsGaV

Date of completion: 13.10.2014

Full quote:

" The Ordinance of the Occupational Regulations of the 13. October 2014 (BGBl. I p. 1603) "

Footnote

(+ + + Text evidence from: 18.10.2014 + + +) 
(+ + + For the first application, see  § 40 + + +) 
(+ + + For application cf.  § § 20, 21, 25, 26 + + +) 

  

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Input formula

Due to § 1 paragraph 6 of the Foreign Tax Act, which is defined by Article 6 (1) (e) of the Law of 26 June 2013 (BGBl. I p. 1809), the Federal Ministry of Finance is responsible for: Unofficial table of contents

Content Summary

Section 1

General subsubsection 1

General provisions

§ 1	Allocation of income to a permanent establishment
§ 2	Definitions
§ 3	Auxiliary and secondary invoice

Subsection 2

Mapping rules

§ 4	Assignment of personnel functions
§ 5	Allocation of material economic goods
§ 6	Mapping of intangible values
§ 7	Allocation of participations, financial assets and similar assets
§ 8	Allocation of other assets
§ 9	Business incidents of the enterprise
§ 10	Allocation of opportunities and risks
§ 11	Backup Transactions Mapping

Subsection 3

Endowment capital, other

Passivity and financing expenses

§ 12	Endowment capital of domestic operations of foreign companies
§ 13	Endowment capital of foreign establishments of domestic companies
§ 14	Other Passive Post Mapping
§ 15	Allocation of funding expenses

Subsection 4

Increasing debt-rightful relations

§ 16	Principle
§ 17	Financing function within a company

Section 2

Special features for banking institutions

§ 18	General
§ 19	Special allocation rules
§ 20	Borrowing capital of domestic banking institutions of foreign credit institutions, prudential supervision of banks
Section 21	Capital of foreign banking institutions of domestic credit institutions, prudential supervision of banks
Section 22	Global trade in financial instruments

Section 3

Special features for

Insurance operations

Section 23	General
§ 24	Special allocation rules
Section 25	Endowment capital of domestic insurance companies of foreign insurance companies, insurance supervisory law
Section 26	Endowment capital of foreign insurance companies in domestic insurance companies, insurance supervisory law
§ 27	Allocation of income from assets
§ 28	Reinsurance within a company
§ 29	Pension funds and insurance companies

Section 4

Special features for

Construction and assembly facilities

§ 30	General
Section 31	Special allocation rules
Section 32	Increasing debt-rightful relationships which are to be considered as a service
§ 33	Increasing debt-rightful relationships in special cases
Section 34	Transitional arrangements for construction and assembly facilities

Section 5

Special features for production facilities

§ 35	General
§ 36	Special allocation rules
Section 37	Increasing debt-rightful relations
§ 38	Transitional arrangements for production facilities

Section 6

Permanent Representatives

§ 39	Permanent Representatives

Section 7

Final provisions

§ 40	First-time application
Section 41	entry into force

Section 1
General Part

Subsection 1
General provisions

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§ 1 Insuration of income to a permanent establishment

(1) For the purposes of the tax allocation of income to a company's premises in accordance with Article 1 (5) of the External Tax Act, a functional and risk analysis of the business activities of the company's premises (Section 12 of the Tax Code) shall be considered as part of the Business activities of the company. Based on the functional and risk analysis in accordance with the first sentence, a comparability analysis of the business activities of the permanent establishment shall be carried out in order to provide for the business relationships of the permanent establishment within the meaning of Section 1 (4) of the External Tax Act (2) On the basis of the functional and risk analysis of the business activities of the company's premises, it is necessary to determine the settlement prices.

1.

the personnel functions (section 1, paragraph 5, sentence 3, point 1 of the External Tax Act), which are to be attributed to the permanent establishment or to the rest of the company, are to be noted, in particular the relevant personnel functions,

2.

shall be assigned to the establishment, based on the relevant personnel functions, assets (Section 1 (5) sentence 3, point 2 of the External Tax Law) and the opportunities and risks (Section 1 (5) sentence 3, point 3 of the External Tax Law),

3.

the establishment, on the basis of the assets allocated to it and of the opportunities and risks assigned to it, shall be assigned a endowment capital (Article 1 (5), third sentence, point 4 of the External Tax Law);

4.

To the extent that this is necessary as a result of the allocation of assets, opportunities and risks as well as of endowment capital, the place of business shall be assigned to the permanent item;

5.

the premises of the undertaking shall be assigned to the undertaking's business transactions with independent third parties and persons close to the company within the meaning of Article 1 (2) of the External Tax Act; and

6.

are to determine the contractual relations to be adopted within the meaning of Section 1 (4), first sentence, point 2 of the External Tax Act, which maintains the premises of the rest of the enterprise.

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§ 2 Definitions

(1) For the purposes of this Regulation, a company shall be domestic if the place of effective management is domestically. (2) For the purposes of this Regulation, a company shall be foreign if the place of the actual business is (3) A staff function is a business activity carried out by the company's own staff for the company. Personnel functions are, in particular, the following business activities:

1.

the use,

2.

the acquisition,

3.

the manufacture,

4.

the administration,

5.

the sale,

6.

further development,

7.

the protection,

8.

risk management and

9.

the decision to make changes in terms of opportunities and risks.

(4) Personal staff shall be any natural person acting for the enterprise on the basis of a company contractual or contractual agreement with the company. A natural person shall also be part of the company's own staff if another undertaking has contracted to leave the natural person to the undertaking as a staff member and the obligation to be transferred to the company is limited. A natural person who works for the company without any contractual agreement is part of the company's own staff, if the natural person

1.

an entrepreate or a shareholder of the undertaking; or

2.

is close to the company or shareholders of the company within the meaning of Section 1 (2) of the External Tax Act.

(5) The personnel function of a permanent establishment is relevant for the allocation of assets, opportunities and risks, or business incidents, if the exercise of this personnel function in the usual business operation in relation to the Personnel functions that are carried out in other premises of the company, which are of the greatest importance for the respective allocation subject matter. In particular, personnel functions related to the assignment object are not decisive.

1.

are merely supporting character, or

2.

relate solely to the general business policy of the company.

(6) Assets within the meaning of this Regulation shall be economic goods and benefits. The assets include, in particular:

1.

material economic goods,

2.

intangible assets, including intangible assets,

3.

participations and

4.

Financial assets.

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Section 3 auxiliary and secondary accounts

(1) An auxiliary and secondary account shall be drawn up for a permanent establishment at the beginning of a marketing year, to be continued during the marketing year and to be completed by the end of the marketing year. The completion of the auxiliary and secondary invoice includes the result of the company's premises. The auxiliary and secondary invoice must be drawn up at the latest at the time of delivery of a tax return,

1.

To which the company is obliged (Section 149 of the Tax Code) and

2.

in which the income of the permanent establishment must be taken into account.

(2) The auxiliary and secondary account includes all the components which are to be attributed to the permanent establishment on the basis of its personnel functions (§ 4). These include:

1.

the assets (§ § 5 to 8) if they would have to be covered by a self-employed company in the tax profit determination,

2.

the endowment capital (§ § 12 and 13),

3.

the remaining passive items (§ 14) and

4.

the operating revenue and operating expenditure associated with the components within the meaning of the first sentence.

The auxiliary and secondary accounts also include fictitious operating income and fictitious operating expenses, which arise as a result of the approximating school-law relationships (§ § 16 and 17). (3) In the records, which according to § 90 (3) sentence 4 of the The requirement to draw up and submit a tax order on request must also be presented

1.

the reasons for the assignment of the components, including the reasons for the assignment of the company's business transactions (§ 9), the opportunities and risks (§ 10) and the security transactions (§ 11), as well as

2.

the reasons for the existence of similar contractual relations (§ § 16 and 17).

(4) Where a permanent establishment is established, the first auxiliary and secondary account shall be drawn up at that point in time for the establishment. If a permanent establishment is terminated, the auxiliary and secondary accounts shall be concluded at that time. The transfer of assets and liabilities, as well as opportunities and risks between the establishment and the rest of the enterprise, to be adopted at the time of the establishment or termination of a permanent establishment, shall be approximated. Contractual relations within the meaning of § 16. (5) The auxiliary and secondary account of an establishment of a company which is not subject to accounting requirements according to either domestic law or foreign law, and which does not actually lead to books, is in accordance with an income statement for revenue within the meaning of Article 4 (3) of the Income Tax Act. At the time of the termination of the establishment, an auxiliary and secondary invoice shall be drawn up, which shall contain a list of assets.

Subsection 2
Mapping rules

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§ 4 Assignment of Personnel Functions

(1) A personnel function shall be assigned to the establishment in which the personnel function is exercised. However, a personnel function cannot be assigned to a permanent establishment if the personnel function

1.

does not have a factual reference to the business activities of the plant and

2.

is carried out on less than 30 days within a marketing year at this facility.

(2) Where a staff function is not exercised at the place of business or in the rest of the undertaking, or where a case referred to in the second sentence of paragraph 1 is present, the staff function shall be assigned to the permanent establishment to which the personnel function shall be the most appropriate (3) If a staff function cannot be unambiguated, an assignment is to be made which does not conflict with paragraphs 1 and 2. Unofficial table of contents

§ 5 Allocation of material economic goods

(1) For the assignment of a material economic asset to a permanent establishment, its use shall be the relevant personnel function. If the same material economy is subsequently used for a period of time in another permanent establishment, it shall be assigned to the other permanent establishment from the date of the change in use. If the use frequently changes, a material economic good is to be assigned to the permanent establishment for whose business it is predominantly used. (2) By way of derogation from paragraph 1, a material economic good is only a different one. the place of establishment as the one in which the material economy is used, where the importance of a different staff function carried out in that other place of establishment is clearly in relation to the meaning of the Personnel function predominates. Other personnel functions are, in particular, those related to the acquisition, production, administration or disposal of the material economic asset in question. Immovable property in which the operations of a permanent establishment are carried out shall always be assigned to that establishment. (3) Other staff functions within the meaning of the second sentence of paragraph 2 shall be assigned at the same time in different establishments of the In the case of a company, the material economic good of the establishment is to be attributed, the other personnel function of which is of the greatest importance for the material economic good. (4) A material economic good cannot be clearly allocated , a classification shall be made which does not apply to paragraphs 1 to 3 contradicts. Unofficial table of contents

§ 6 Allocation of intangible values

(1) In order to assign an intangible value to a permanent establishment, its creation or acquisition shall be the key personnel function. Where, at the same time, personnel functions which create or acquire an intangible value are carried out simultaneously in different establishments, the intangible value of the permanent establishment shall be assigned to the establishment of which the personnel function shall be the largest (2) By way of derogation from paragraph 1, an intangible value shall be attributed only to a place of establishment other than that on which the intangible value of the intangible value is created or acquired, where the importance of any other establishment held in that other establishment Staff function clearly outweighs the importance of the staff function referred to in paragraph 1. Other personnel functions are, in particular, those related to the use, management, development, protection or disposal of the intangible value. (3) Other personnel functions within the meaning of paragraph 2 The intangible value of the establishment shall be attributed to the intangible value of the establishment, the other personnel function of which is of the greatest importance for the intangible value. (4) Can an intangible value be attributed to the intangible value of the establishment. If the value is not unambiguated, then an assignment shall be made which shall: shall not be contrary to paragraphs 1 to 3. In these cases, an intangible value can also be allocated to the premises in which the personnel functions of the greatest importance are carried out in the long term. Unofficial table of contents

§ 7 Allocation of participations, financial assets and similar assets

(1) In order to assign a holding, a financial asset or a similar asset to a permanent establishment, the use of the investment, the financial facility or the similar asset is the key personnel function. The use is based on the functional relationship to the business activities of the company. Where the functional relationship exists at the same time as the business activities of different premises, the asset shall be assigned to the permanent establishment to which the overriding functional relationship exists. (2) By way of derogation from paragraph 1, a The asset referred to in the first sentence of paragraph 1 shall be assigned to a permanent establishment other than that in which the asset is used within the meaning of the first sentence of paragraph 1, if the importance of a holding in that other establishment is to be applied other staff functions clearly compared to the meaning of the Personnel function predominates. Other personnel functions are, in particular, those related to the acquisition, administration, risk management or disposal of an asset within the meaning of the first sentence of paragraph 1. (3) Other personnel functions are to be provided in the sense of the In the case of the first sentence of paragraph 2, at the same time, in different premises of the undertaking, an asset within the meaning of the first sentence of paragraph 1 shall be assigned to the establishment whose other personnel function is of the greatest importance. (4) May The asset referred to in the first sentence of paragraph 1 shall not be unambiguated or altered the predominant functional relationship is often the same as that which does not conflict with paragraphs 1 to 3. Unofficial table of contents

§ 8 Allocation of other assets

(1) For the assignment of an asset not mentioned in § § 5 to 7 (other assets) to a permanent establishment, its creation or its acquisition is the key personnel function. Where personnel functions which create or acquire another asset at the same time are carried out in different establishments, the other asset shall be assigned to the permanent establishment, the staff function of which shall be the (2) By way of derogation from paragraph 1, another asset is to be assigned to a different place of business only than that which, on the basis of its staff function, has resulted in the creation of other assets; has been or has been acquired if the importance of one in these other It clearly outweighs the importance of the human resources functions referred to in paragraph 1. Other personnel functions are, in particular, those related to the use, administration, risk management or disposal of the other asset in question. (3) Other personnel functions within the meaning of the second sentence of paragraph 2 are to be provided. at the same time in different premises of the undertaking, the other asset is to be assigned to the permanent establishment whose other personnel function is of the greatest importance for that other asset. (4) Can another asset be assigned to the establishment of the company; (4) Asset value is not unambiguated, so a mapping , which shall not be contrary to paragraphs 1 to 3. Unofficial table of contents

§ 9 Allocation of business incidents of the company

(1) For the assignment of a business case (Section 1 (4), first sentence, point 1 of the External Tax Act), which the company has concluded with an independent third party or with a close-by person, to a permanent establishment, the The personnel function on which the company is responsible for the delivery of the business case, the relevant personnel function. If, at the same time, different establishments simultaneously perform a personnel function on which the establishment of such a business incident is based, the business incident must be assigned to the permanent establishment whose personnel function is of the greatest importance (2) By way of derogation from paragraph 1, a business incident shall only be assigned to a different establishment other than that which, on the basis of its staff function, has been the subject of a business incident, if the importance of a business incident has been achieved in the of the other human resources function is clearly outweighed by the importance of the staff function referred to in paragraph 1. Other personnel functions are, in particular, those related to the performance of obligations arising out of the business incident or with its administration or with its risk management. (3) Other personnel functions in the sense of the Paragraph 2, first sentence, at the same time in different premises of the undertaking, shall be attributed to the business incident of the establishment whose other personnel function is of the greatest importance for the business incident. (4) May If a business incident is not unambiguated, a mapping is , which shall not be contrary to paragraphs 1 to 3. Unofficial table of contents

§ 10 Allocation of opportunities and risks

(1) Any opportunities and risks in the immediate connection with an asset within the meaning of § § 5 to 8 or with a business incident within the meaning of § 9, these opportunities and risks shall be assigned to the premises, which shall also include the relevant (2) Reaction opportunities and risks which are not directly related to an asset or to a business incident on the staff function of a permanent establishment shall be: Personnel function for the allocation of opportunities and risks to a permanent establishment. Where such a staff function is carried out simultaneously in different establishments, the opportunities and risks in question shall be assigned to the establishment whose personnel function is of the greatest importance for these opportunities and risks. (3) By way of derogation from paragraph 2, opportunities and risks shall only be assigned to a different establishment other than that on whose human resources function the opportunities and risks are based on the importance of a different establishment in that other establishment Staff function clearly in relation to the meaning of the Personnel function predominates. Other personnel functions are, in particular, those related to administration, risk management or the realization of opportunities and risks or with the decision to make changes in terms of opportunities and risks. (4) Where other staff functions within the meaning of the first sentence of paragraph 3 are exercised simultaneously in different premises of the undertaking, the opportunities and risks involved shall be assigned to the establishment, the other personnel function of which shall be the largest Importance for the opportunities and risks. (5) Can opportunities and risks where it is not clearly assigned, an assignment shall be made which does not conflict with paragraphs 1 to 4. Unofficial table of contents

§ 11 Allocation of hedging transactions

(1) A company shall close a backup business for the purpose of:

1.

to cover certain risks of a personnel function to be assigned in accordance with § 4 of a permanent establishment,

2.

to cover certain risks of an asset which is to be assigned to a permanent establishment in accordance with § § 5 to 8; or

3.

to cover certain risks of a business event which is to be attributed in accordance with § 9 of a permanent establishment,

the security business, including the related assets used for security purposes, is to be attributed to that establishment. (2) A company shall close one or more hedging operations for the purpose of:

1.

to safeguard certain risks of personnel functions which are to be attributed in accordance with § 4 different operating sites,

2.

to hedge certain risks of assets which are to be attributed to different establishments in accordance with § § 5 to 8; or

3.

to protect certain risks of business incidents which are to be attributed in accordance with § 9 of different operating sites,

and if a direct assignment of individual assets, which serve security purposes, is not possible at certain risks, or if the direct allocation would create a disproportionate effort, then a mediocre security context is present. In these cases, hedging transactions, including the related assets, which are used for security purposes, are to be attributed in part to the premises to which the personnel functions, assets or business incidents are to be attributed, the Risks are hedged. The proportion shall be determined in accordance with an appropriate allocation key. (3) Save transactions shall only be assigned by way of derogation from paragraphs 1 and 2 if, in individual cases, this leads to a result of the establishment which is the result of the (4) Save assets from the risks of other assets, without the protection of the assets, shall apply to the assignment of the transactions and the related assets to the provisions of § § 5 to 8.

Subsection 3
Endowment capital, other liabilities and financing expenses

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§ 12 Dotation capital of domestic operations of foreign companies

(1) At the beginning of a marketing year, a domestic establishment of a foreign company carrying out the accounts or actually carrying books under foreign law is the share of the company's own capital. , which corresponds to their share of the assets as well as the opportunities and risks in relation to the rest of the enterprise (capital allocation method). (2) For the allocation of endowment capital according to the method of allocation of capital, the amount of the Own capital of the foreign company under German tax law . For reasons of simplification, the amount of capital paid, plus the reserves and profit or loss contributions, and the loss of losses, may be used in accordance with the company's foreign balance sheet, if the enterprise is to make it credible,

1.

that this capital does not deviate significantly from the equity capital to be used under German tax law; or

2.

that deviations are offset by adjustments in such a way that the result does not differ significantly from the first sentence.

(3) In order to determine the capital ratio of the domestic establishment, which is used to calculate its endowment capital according to the method of allocation of capital, the assets of both the permanent establishment and the rest of the undertaking shall be valued at which comply with the foreign comparison principle and which take account of the opportunities and risks involved. For reasons of simplification, book values or comparable values can be taken from the documents of the foreign company if the company makes a credible undertaking,

1.

that this assessment leads to a capital ratio which does not differ significantly from the capital ratio, which would be based on an approach of values that correspond to the foreign-comparison principle, or

2.

that deviations are offset by adjustments in such a way that the result does not differ significantly from the first sentence.

(4) According to the method of allocation of capital for the domestic establishment, there is a capital of endowment which results in permanent results which a full and conscientious manager would not be prepared to accept and which belongs to the Foreign companies, the part of which is the permanent establishment, to a group of companies which corresponds to a group within the meaning of section 18 of the German Stock Corporation Act (AktG), the endowment capital to be assigned to the company's premises shall be determined as follows:

1.

the consolidated capital of the group shall be determined in accordance with paragraph 2; and

2.

the place of establishment shall, on a consolidated basis in accordance with paragraphs 1 to 3, be classified as a share of the consolidated equity of the group as a share of the share capital.

(5) Notwithstanding the provisions of paragraphs 1 to 4, a domestic establishment shall be assigned at least the capital actually shown in a domestic trade balance of the domestic establishment as a endowment capital. (6) Changes within a Financial year the allocation of personnel functions, assets or opportunities and risks in relation to the conditions at the beginning of the marketing year, and this leads to a significant change in the level of the endowment capital, which is the the national permanent establishment referred to in paragraph 1 shall be assigned to To adjust the endowment capital accordingly within the marketing year.

Footnote

(+ + + § 12: For application, see Section 20 (5) and Section 25 (5) + + +) Unofficial table of contents

§ 13 Dotation capital of foreign premises of domestic companies

(1) At the beginning of a marketing year, a foreign establishment of a domestic company carrying out accounting or actual books in accordance with national law shall be allocated only to the extent to which the undertaking is subject to a financial year (2) A higher endowment capital may be assigned to a foreign permanent establishment than to a foreign establishment as referred to in paragraph 1. as far as the higher dose in each individual case results in a result of the the establishment of an operating site which is better in accordance with the foreign comparison principle. However, the endowment capital shall not exceed the amount resulting from the capital allocation method in accordance with Article 12 (1) to (3). For the purposes of the calculation of this maximum amount, the accounting estimates of the domestic undertaking which are relevant for taxation shall be based, unless the approach of other values results in a case-by-case basis on the basis of the establishment of the establishment, which shall: (3) A endowment capital which exceeds the amount referred to in the second sentence of paragraph 2 may only be allocated to a foreign establishment, in so far as the non-tax rules of the State in which the establishment of the establishment are (4) A foreign establishment shall be without prejudice to the (5) In the course of a marketing year, the allocation of personnel functions shall be assigned to the capital of the foreign establishment. (5) of assets or of opportunities and risks to the conditions at the beginning of the marketing year, resulting in a significant change in the level of the endowment capital to be attributed to the foreign establishment referred to in paragraph 1, the endowment capital shall be adjusted accordingly. Unofficial table of contents

§ 14 Allocation of other passive items

(1) The establishment of a company which is subject to accounting obligations under domestic law or foreign law or which actually carries books shall be subject to the assignment of the risks and the risks to be identified in the auxiliary and auxiliary invoice. the remaining liabilities of the undertaking which are directly linked to the assets allocated to the permanent establishment and to the opportunities and risks associated with it (direct allocation). (2) Excess the sum of the remaining passive items directly assigned to the premises (directly allocable passive items), the amount remaining after the allocation of the risks to be identified in the auxiliary and secondary accounts and the endowment capital for the allocation of liabilities to the premises, these are directly to shorten the allocation of passive items in proportion. The proportion of the directly assignable liabilities remaining after the reduction is to be attributed to the permanent establishment. (3) After the determination of the risks to be identified in the auxiliary and secondary account and of the endowment capital and the direct allocation of other passive items to liabilities for the permanent establishment, this shortfall shall be filled up with other liabilities of the company (indirect allocation). Unofficial table of contents

§ 15 Allocation of financing expenses

(1) Financing expenses of a company linked to liabilities directly attributable to a permanent establishment of that undertaking in accordance with Article 14 (1) shall also be assigned to that establishment. (2) Are those directly related to: (3) To the extent that an allocation-capable liability item in accordance with Article 14 (2) is to be reduced proportionally, the financing expenses directly related to these directly assignable liabilities shall also be reduced accordingly. (3) Direct allocation of financing expenses of the company to the company's premises is not possible or would create a disproportionate effort, the company's premises shall be allocated in proportion to the indirect allocation of the liabilities in accordance with the indirect allocation of the company's liabilities. In this case, the proportion of the permanent establishment shall be determined by the financing expenses of the undertaking in accordance with the ratio of the remaining liabilities to the permanent establishment at the beginning of the respective marketing year. to the rest of the company's liabilities. By way of derogation from the rates 1 and 2, the share of the permanent establishment in the financing expenses shall be determined if, in individual cases, this leads to a result of the establishment which is better in accordance with the foreign comparison principle. (4) The domestic Establishment of a foreign company, which is not subject to accounting obligations under foreign law and does not actually lead to books, must be subject to a financing expense of the foreign company only insofar as this is carried out in the is directly related to the business of the establishment. An assignment in accordance with the first sentence assumes that the permanent establishment remains a result of its business activities which corresponds to the foreign settlement principle. (5) The foreign establishment of a domestic company that is based on domestic law. If it is not subject to accounting regulations and does not actually lead to books, it is necessary to allocate a financial outlay for the domestic company if it is directly related to the business activities of the establishment. The foreign permanent establishment shall be allocated at least the share of the financing effort corresponding to its share of the external sales of the domestic undertaking. The third sentence of paragraph 3 shall apply mutatily.

Subsection 4
Increasing debt-rightful relations

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§ 16 Principle

(1) There is an agreement between a permanent establishment and the other undertaking in accordance with Article 1 (4), first sentence, point 2 of the External Tax Law, when economic transactions are established,

1.

which require a change in the relationship between the establishment and the other undertaking in accordance with § § 5 to 11; or

2.

which would be the permanent establishment and the rest of the undertakings,

a)

would be governed by debt agreements, or

b)

would lead to the assertion of legal positions.

(2) Transfer prices which correspond to the foreign comparison principle shall be set for debt-related relationships to be approximated. These transfer prices lead to fictitious operating revenue and fictitious operating expenses. (3) A permanent establishment of financial resources of the rest of the enterprise is not present. This shall not apply if:

1.

§ 17 is to be applied; or

2.

on the basis of the business activities of a permanent establishment in the current marketing year, financial resources of the permanent establishment which can be shown to be used for specific purposes in the rest of the enterprise.

An agreement to be adopted in accordance with the second sentence of sentence 2 shall be deemed to have been made available by financial means between the permanent establishment and the other undertaking and shall end at the latest.

1.

with the end of the current marketing year, or

2.

with an adjustment of the endowment capital according to § 12 (6) or § 13 (5).

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Section 17 Financial function within a company

(1) A financing function within a company shall include the liquidity management of one or more other premises of the same enterprise by means of a permanent establishment (financing establishment). Liquidity management includes, in particular, fundraising, the allocation of funds and the external investment of liquidity overhangs. (2) The exercise of a financial function within a company is a debt-to-secondary balance. Relationship, which is generally to be regarded as a service and not as a provision of its own financial resources of the financing establishment. For such a service, the transfer price to be applied in accordance with Article 16 (2) sentence 1 shall be determined in accordance with a cost-oriented transfer pricing method. Financing expenses and financial returns of the company caused by the activities of the financing establishment do not affect the cost base of the financing establishment. (3) It cannot be established that: the financial establishment costs incurred directly by a certain other establishment or where such a determination would involve a disproportionate effort, the costs of the Financing establishment plus an appropriate surcharge (4) Assets that are the basis for an external asset of liquidity overhangs or which are based on the external asset of the external investment Liquidity overhangs arise, and income from these assets is not attributable to the financing establishment, but to the other operating sites. Where a direct allocation of the assets and income arising from the financing function is not possible or would be disproportionate to the other premises, those assets and their income shall be the to other premises in one part. The origin of the liquidity overhangs is decisive for the division. (5) liabilities arising from the financing function for the company are not the financing establishment, but according to § 15 (1) the other liabilities To assign operating sites. For the allocation of the corresponding financing expenses, § 15 (3). (6) Positive balances shall apply to settlement accounts resulting from the financing function in relation to the financing establishment to the other premises, shall not be considered as assets within the meaning of § 7 or § 8. They shall not be galvanissed. (7) The provisions of paragraphs 1 to 6 shall not apply if in individual cases

1.

in the financing establishment with respect to the assets and liabilities arising and the opportunities and risks associated with it, staffing functions which provide for the allocation of assets and liabilities to the a financing establishment, and

2.

a transfer pricing method, not referred to in paragraph 2, results in a result for the financing function which is better in accordance with the foreign-comparison principle.

Section 2
Special features for banking institutions

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§ 18 General

A permanent establishment,

1.

the part of a credit institution within the meaning of Article 1 (1) of the Banking Act or part of a financial services institution within the meaning of Article 1 (1a) of the Banking Act, or the part of a comparable undertaking in the sense of the foreign banking supervisory law; and

2.

the banking operations,

is a bank establishment for which the provisions of Sections 1 to 17 apply, insofar as no deviating arrangement is made in this section. Unofficial table of contents

Section 19 Special allocation schemes

(1) An asset that is the subject of banking transactions within the meaning of Article 1 (1) of the Banking Act or of financial services within the meaning of Article 1 (1a) of the Banking Act shall be assigned to a banking establishment if the entrepreneurial risk-taking function is carried out in this banking establishment. The entrepreneurial risk-taking function of credit institutions is the staff function, the exercise of which leads to the creation of the opportunities and risks of the enterprise associated with the asset. (2) Various banking facilities in the With respect to an asset at the same time as a staff function satisfying the conditions set out in paragraph 1, the asset shall be assigned to the banking establishment, whose personnel function is of the greatest importance. This personnel function is considered to be an entrepreneurial risk-taking function. The assignment is determined according to the personnel functions that are exercised up to the time of the creation of the respective asset. The banking establishment exercising the entrepreneurial risk-taking function with respect to an asset is assigned the asset and the opportunities and risks associated with the asset. (3) Can an asset be Paragraph 2 shall not be clearly attributed to the banking establishment to which the customer relationship to which the asset belongs is to be assigned. An assignment that deviates from this is only to be carried out if, in individual cases, this leads to a result of the banking establishment which is better suited to the foreign comparison principle. (4) The appropriate allocation of an asset may only be changed, if

1.

the change will result in the asset being allocated to the banking establishment to which the relevant customer relationship exists and in the bank establishment allocated to the asset no staffing functions with regard to the asset the assets are more or less exercised; or

2.

the allocation in individual cases leads to a result of the banking establishment which is better in accordance with the foreign comparison principle.

(5) Where an asset within the meaning of paragraph 1 is to be attributed to a banking establishment and another establishment has a supporting staff function with respect to that asset, the first sentence of Article 16 (2) shall be used for the provision of the asset. This staff function shall be subject to a transfer price which corresponds to the foreign comparison principle. Such supporting personnel functions can be

1.

serve to carry out the real entrepreneurial risk-taking function,

2.

the subsequent management of the asset, or

3.

be other auxiliary functions.

(6) § 16 (3) applies to banks ' premises, provided that a debt-to-school relationship, which is to be assumed as a provision of financial resources, is to be used in addition to the second sentence of Article 16 (3), second sentence, if:

1.

the credit institution proves that the duration of Article 16 (3) in connection with the credit institution ' s business policy and the staffing functions related to the provision and reception of financial resources are properly applied; and

2.

the period in excess of § 16 (3) shall result in a result of the banking establishment which is better in accordance with the foreign comparison principle.

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§ 20 Dotation capital of domestic banking institutions of foreign credit institutions, prudential supervision of banks

(1) A domestic banking establishment of a foreign credit institution shall be assigned the share of the capital of the foreign credit institution, which shall be proportional to its share in the sum of the risk-weighted position amounts of the foreign credit institution Credit institution in the sense of the foreign banking supervisory law (capital allocation method for banking establishments). For the determination of the respective share, the credit institution's internal risk-weighted position amounts are to be disregarded. (2) A lower endowment capital than in paragraph 1 may the foreign credit institution of the domestic To the extent that this leads to a result of the domestic banking establishment which, in relation to the rest of the enterprise, leads to the foreign comparison principle on the basis of the assets assigned to it and the associated assets and the associated assets. Chances and risks better match. However, the domestic banking establishment must have at least one endowment capital which it would have to designate as a core capital according to prudential prudential principles if it were a legally independent, domestic credit institution (Minimum capital equipment method for bank premises). Where the minimum capital equipment method is applied, the endowment capital shall be increased by 0.5 percentage points of the sum of the risk-weighted position amounts of the domestic banking establishment, unless a lower surcharge leads to a reduction in the amount of the capital. (3) A foreign credit institution may disregard the application of paragraphs 1 and 2 for its domestic banking establishment, if:

1.

the sum of the assets of the auxiliary and ancillary accounts of the domestic banking establishment is less than EUR 1 billion, and

2.

at least 3% of the sum of the assets of the auxiliary and ancillary accounts is allocated to the national banking establishment, but at least 5 million euro.

(4) For a domestic banking establishment of a foreign credit institution established in a State of the European Union or of the European Economic Area, in which a credit institution may apply a scheme to which the provisions of Section 2a of the Credit law applies, paragraph 1 shall apply only if the foreign credit institution

1.

does not apply the scheme, or

2.

Points out that, even if the scheme did not apply, its capital adequacy would be sufficient in accordance with the prudential supervision rules to be applied.

If the foreign credit institution applies the foreign scheme and the proof referred to in the first sentence of paragraph 2 is not carried out, the determination of the share of the endowment to be attributed to the national banking establishment shall be determined in accordance with the provisions of paragraph 1. to apply with the proviso that:

1.

for the determination of the equity which is to be based on the calculation, the core capital capital of the foreign credit institution group which is subject to prudential supervision shall be that if it were a national group of institutions, the group of Requirements of § 10a (1) of the Banking Act in conjunction with Articles 92 et seq. of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on the prudential requirements of credit institutions and investment firms and amending Regulation (EU) No 646/2012 (OJ L 136, 31.5.2013, p. 1., OJ L 208, 2.8.2013, p. 68, L 321, 30.11.2013, p. 6), as amended, and

2.

for the determination of the share of the domestic banking establishment in the core capital of the foreign credit institution group, the sum of the risk-weighted position amounts of the bank establishment to the sum of the risk-weighted position amounts of the bank Credit institution group, without taking into account the intra-group risk-weighted position amounts.

Section 12 (6) shall apply with the proviso that the amount of the endowment capital to be allocated to the domestic banking establishment shall also be adjusted to the extent that this requires domestic banking supervision law. In addition, § 12 shall apply. (6) Paragraphs 1 to 5 shall not apply to domestic establishments of foreign financial services institutions which are not subject to prudential capital requirements on bank prudential supervision. Unofficial table of contents

Section 21 Dotation capital of foreign banking institutions of domestic credit institutions, prudential supervision of banks

(1) The foreign banking establishment of a domestic credit institution shall be assigned a endowment capital in accordance with § 13 paragraph 1, unless the applicable foreign banking supervisory law contains mandatory provisions relating to the Minimum capital endowment which the foreign banking establishment would have to comply with if it were an independent foreign credit institution (minimum capital payment method for bank premises). The domestic credit institution shall have the reasons for the approach of a higher endowment capital than in accordance with § 13 (1). (2) A higher endowment capital than in paragraph 1 shall be subject to the domestic credit institution of the foreign bank establishment. only to the extent that the higher allocation leads to a result of the foreign banking establishment, which corresponds better to the foreign comparison principle on the basis of the assets allocated to it and the opportunities and risks associated with it. If the conditions set out in the first sentence are met, the upper limit of the amount of the allocation shall be the amount resulting from the application of the method of allocation of capital for banking establishments in accordance with Article 20 (1). (3) A higher level of endowment than in accordance with paragraph 2 may be assigned to the foreign banking establishment only to the extent that this requires foreign banking supervision for foreign independent credit institutions and the domestic credit institution is required to provide the appropriate rules for its foreign bank establishment. Sentence 1 shall apply only in so far as the rest of the enterprise retains at least as much capital as would be required under domestic banking supervision law. (4) Is a domestic credit institution

1.

Part of a domestic institute group to which § 2a of the Banking Act is to be applied, or

2.

Part of a foreign institute group to which a regulation of another State of the European Union or of the European Economic Area, which is Article 7 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on the prudential requirements of credit institutions and investment firms and amending Regulation (EU) No 646/2012 (OJ L 196, 27.7.2012, p. OJ L 176, 27.6.2013, p. 1),

and has a lower core capital of this domestic credit institution than it is in accordance with prudential prudential principles for the sum of risk-weighted position amounts without the application of Section 2a of the Banking Act or of the scheme of a other State of the European Economic Area, which is comparable to Article 7 of Regulation (EU) No 575/2013, a foreign banking establishment of that credit institution may be subject to a minimum endowment capital referred to in paragraph 1 only to the extent to which the rest of the enterprise remains a core capital, according to banking prudential principles, would be necessary for the sum of the risk-weighted position amounts of the rest of the enterprise. (5) § 13 (5) is to be applied with the proviso that the amount of the foreign banking establishment as far as foreign banking supervision law is required, is also to be adjusted. In addition, § 13 shall apply mutatis mutandis. (6) Paragraphs 1 to 5 shall not apply to a foreign banking establishment of a domestic financial services institution which is not subject to prudential requirements for banking supervision. Unofficial table of contents

Section 22 Global trade in financial instruments

(1) Financial instruments within the meaning of Section 1 (11), first sentence, of the Banking Act, which are traded around the clock by financial institutions on the markets of the whole world (global trading in financial instruments), are to be classified in accordance with § 19. In particular, global trade in financial instruments shall include:

1.

the global issueand the global distribution of financial instruments,

2.

the activity as a market maker within the meaning of Section 23 (4) of the Securities Trading Act for physical securities,

3.

the activity on the stock and commodity exchanges,

4.

the development of new financial instruments.

(2) In the global trading of financial instruments, the entrepreneurial risk-taking function is exercised in various banking institutions and a clear allocation of individual financial instruments is not possible, or only with unreasonable cost. , the results of the financial instruments shall be divided into the banking establishments involved in the global trade, in accordance with an appropriate allocation key. If the opportunities and risks arising from the financial instruments are taken into account in proportion to the determination of the endowment capital in accordance with Articles 20 and 21, in accordance with the first sentence, the financial instruments may be allocated by way of derogation from the first sentence, if:

1.

this is shown in the auxiliary and secondary account in accordance with § 3 and

2.

the results of the banking operations that participate in the global trade are not affected.

(3) In the case of approximated school-related relationships involving the entrepreneurial risk-taking function in the global trade in financial instruments, the residual profit sharing method based on the business incident shall be applied, unless, in individual cases, shall result in the application of another method to a result that is better than the foreign comparison principle.

Section 3
Special features for insurance companies

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§ 23 General

A permanent establishment,

1.

the part of an insurance undertaking within the meaning of Section 1 (1) (1) of the Insurance Supervision Act, or part of an insurance undertaking within the meaning of the foreign insurance supervisory law, and

2.

the insurance business operates

is an insurance establishment for which § § 1 to 17 apply, insofar as no deviating arrangement is made in this section. Unofficial table of contents

Section 24 Special allocation schemes

(1) An asset arising from the conclusion of an insurance contract shall be assigned to an insurance establishment if the entrepreneurial risk-taking function is carried out in that insurance establishment. In the case of insurance undertakings, an entrepreneurial risk-taking function is the personnel function of the drawing process, the exercise of which leads to the opportunities and risks associated with the insurance contract, and in particular to the risks associated with the insurance contract. the insurance-related risk arising from the insurance contract, from which insurance companies will be taken over. The drawing process consists of:

1.

the drawing up of the drawing strategy,

2.

risk classification and risk selection,

3.

pricing,

4.

the analysis of risk-sharing and

5.

the assumption of the insured risks.

(2) The exercise of the entrepreneurial risk-taking function shall not only determine the assignment of the insurance contract to an insurance establishment, but also the assignment of the insurance contract related to the insurance contract Assets, the related operating income and operating expenses, as well as the related opportunities and risks. (3) Are the personnel functions of the drawing process in various insurance companies? is an asset resulting from the conclusion of a insurance contract is to be assigned to the insurance establishment, whose personnel function is of the greatest importance until the conclusion of the insurance contract. This personnel function is considered to be an entrepreneurial risk-taking function. The assignment of an insurance contract is determined on the basis of the personnel functions exercised until the conclusion of the insurance contract. (4) In reinsurance business, it is contradictable to assume that in the drawing process the risk classification (5) If a foreign insurance company has a branch in the sense that it is of the greatest importance, and therefore the risk-taking function for the conclusion of a reinsurance contract. (5) § § 106, 110a, 121h or 121i of the Insurance Supervisory Act , which is a national insurance establishment, it is to be assumed that, in respect of an insurance contract, the principal agent appointed for the establishment is concluded in accordance with Article 106 (3) sentence 3 of the The Insurance Supervision Act shall be deemed to have been exercised in accordance with the provisions of paragraphs 1 to 4 in the branch office. The presumption can only be refuted if the foreign insurance company proves that:

1.

the entrepreneurial risk-taking function for the insurance contract referred to in the first sentence is not exercised in the national insurance establishment; and

2.

the facts have been notified to the German Insurance Supervisory Authority and to the Insurance Supervisory Authority responsible for the foreign insurance undertaking.

(6) An insurance contract is a foreign insurance establishment of a domestic insurance undertaking which is subject to a supervision comparable to that of German insurance supervision and for which a principal authorized representative according to § In the first sentence of 13b (1), first sentence, point 3 of the Insurance Supervision Act, or for which another authorised representative, who is comparable to a principal representative within the meaning of Article 106 (3) of the Insurance Supervision Act, has been appointed on the basis of Corresponding foreign insurance prudential requirements , only if the entrepreneurial risk-taking function within the meaning of paragraphs 1 to 4 is actually carried out in the foreign insurance establishment. If only the personnel functions of the drawing process are exercised in the foreign insurance establishment, which are directly related to the assumption of the insured risk, then the insurance contract shall be the only one of the following: to be assigned to a foreign insurance establishment,

1.

in addition, if you have one of the following HR functions that are not part of the drawing process:

a)

product management and product development,

b)

Sales and marketing, or

c)

Risk management and reinsurance and

2.

if the importance of the personnel functions carried out in the foreign insurance establishment outweighs the importance of the personnel functions.

(7) § 19 (5) shall apply mutatily. Unofficial table of contents

§ 25 Dotation capital of domestic insurance companies of foreign insurance companies, insurance supervisory law

(1) In order to determine the endowment capital of domestic insurance companies of foreign insurance companies, the insurance establishment is in a first step a share of the assets of the foreign insurance company. to cover insurance undertakings which cover the technical provisions and the capital of the foreign insurance undertaking. The proportion of the insurance establishment is based on the ratio of the technical provisions relating to insurance contracts to which the national insurance establishment is to be assigned, to the technical technical provisions of the insurance company. Provisions which are shown in the balance sheet of the foreign insurance undertaking as a whole. (2) In a second step, the assets assigned under paragraph 1 shall be subject to technical provisions and to the assets assigned to them. Liabilities incurred and liabilities incurred; and Deduction of accounting items which are to be determined in accordance with § § 341e to 341h of the Commercial Code as well as in accordance with the Insurance Company-Accounting Ordinance of 8 November 1994 (BGBl. 3378), as last amended by Article 27 (9) of the Law of 4 July 2013 (BGBl). I p. 1981), as amended in each case. The result is the endowment capital to be allocated to the domestic insurance establishment (modified capital allocation method for insurance companies). (3) A lower amount of endowment than in accordance with paragraph 2 may be used by the foreign institution. Insurance undertakings of the domestic insurance establishment only to the extent that this leads to a result of the domestic insurance establishment which, in proportion to the rest of the company, is the foreign comparative principle on the basis of the and the opportunities allocated to it, and The risk is better. The national insurance establishment must have at least one endowment capital which it would have to designate as equity capital in accordance with the principles of insurance prudential supervision, if it were a legally independent insurance undertaking (minimum capital equipment method for insurance establishments). (4) The endowment capital allocated to a domestic insurance establishment by the foreign insurance undertaking shall be subject to the endowment capital, which shall be: referred to in paragraph 1 shall be assigned to: (5) § 12 (6) is to be applied with the proviso that the amount of the endowment capital to be allocated shall also be adjusted to the extent that this is the domestic insurance supervisory law . In addition, § 12 shall apply mutatily. Unofficial table of contents

§ 26 Dotation capital of foreign insurance companies in domestic insurance companies, insurance supervisory law

(1) The foreign insurance establishment of a domestic insurance undertaking shall be assigned a endowment capital according to § 13 (1), unless the applicable foreign insurance supervisory law contains mandatory Minimum capital requirements that the foreign insurance establishment would have to comply with if it were an independent foreign insurance company (minimum capital payment method for insurance establishments). The national insurance undertaking must demonstrate the reasons for the approach of a higher endowment capital than in accordance with Article 13 (1). (2) A higher level of endowment than the minimum capital of insurance supervision referred to in paragraph 1 may be used by the National insurance undertakings of the foreign insurance establishment only to the extent that this leads to a result of the foreign insurance establishment, which is the result of the foreign settlement principle on the basis of the foreign insurance establishment assets and the opportunities and risks associated with them better. The endowment capital shall not exceed the amount resulting from the application of the modified capital allocation method for the insurance establishments referred to in Article 25 (1) and (2). (3) A higher endowment capital than that referred to in paragraph 2 may be used by the foreign insurance supervision law only to the extent that this requires the foreign insurance supervisory law and the domestic insurance undertaking requires the relevant regulations for its foreign insurance company Insurance establishment follows. Sentence 1 shall apply only in so far as the rest of the enterprise retains at least as much capital as would be required under national insurance supervision law. (4) Article 13 (5) shall apply with the proviso that the amount of the capital shall be: as far as the foreign insurance supervisory law is required, to be adjusted as well. In addition, § 13 shall apply mutatily. Unofficial table of contents

Section 27 Allocation of income from assets

(1) Income from assets shall be assigned to an insurance establishment where such assets are used for at least one of the following purposes:

1.

the cover of the technical provisions of the insurance establishment,

2.

the cover of the liabilities incurred and the clearance of the accounts of the insurance establishment, or

3.

the cover of the deposit capital of the insurance establishment.

(2) Insofar as a direct allocation of assets and income is not possible, an insurance establishment shall be classified as income in accordance with the average capital investment return of the insurance undertaking. Unofficial table of contents

§ 28 reinsurance within a company

The technical risk associated with an insurance establishment on the basis of the appropriate assignment of an insurance contract shall not be subject to a debt-to-school relationship which is to be approximated and which shall be subject to a reinsurance contract comparable between legally independent insurance undertakings, to which other undertakings are assigned. Unofficial table of contents

Section 29 Pension funds and insurance-purpose companies

§ § 23 to 28 shall apply mutatily to a permanent establishment which operates comparable transactions with insurance transactions and which

1.

Part of a pension fund within the meaning of Section 112 of the Insurance Supervision Act or a comparable foreign supervisory law, or

2.

Part of an insurance-purpose company within the meaning of Section 121g of the Insurance Supervision Act or a comparable foreign supervisory law.

Section 4
Special features for construction and assembly facilities

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§ 30 General

§ § 1 to 17 shall apply for a permanent establishment, which carries out construction or assembly work and ends after the construction or assembly work has been completed (construction and assembly plant), insofar as no deviating arrangement is made in this section. A company to which a construction and assembly plant belongs, is a construction and assembly company. Unofficial table of contents

Section 31 Special allocation schemes

(1) A material economic good which is used in a construction and assembly facility shall only be assigned to the site in accordance with the first sentence of Article 5 (1) if, in addition to the use, there are also personnel functions which are related to the use of the material. with the acquisition, manufacture, sale or exploitation of the material assets. The assignment provided for in the first sentence shall require that the meaning of the above-mentioned personnel functions, which are exercised in the construction and assembly plant in respect of the material economic good, shall be subject to the personnel functions of the institution concerned. (2) If a material commercial property within the meaning of paragraph 1 is not attributable to the construction and assembly operations, it shall be assigned to the rest of the enterprise and shall be considered as the construction and assembly plant. (3) The provisions of paragraphs 1 and 2 shall apply mutatily to the allocation of of assets in accordance with § § 6 to 8. (4) The construction or assembly contract with the client is a business incident within the meaning of § 9, which is to be assigned to the other company. This assignment shall be amended only with the legal consequences of § 16, if:

1.

the personnel functions carried out in the construction and assembly premises are clearly of the greatest importance in the context of the contract, in particular the preparation and conclusion of the contract, the provision of the necessary assets and the fulfilment of the obligations arising from the contract, or

2.

For functional reasons, it is to be assumed that the construction and assembly plant would have been an independent third party, the construction or assembly contract with the client would have been taken over by the other company.

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Section 32 School-law relationships to be considered as a service

(1) The participation of a construction and assembly plant in the performance of the construction and assembly contract concluded by the construction and assembly company shall be deemed to be refutable as an agreed school-law relationship, which is a service of construction and construction. Installation site is to be considered in relation to the rest of the company. The transfer price for the service is generally to be determined according to a cost-oriented transfer pricing method. The costs of the construction and assembly facilities to be taken into account for the application of this method shall include, in particular, all the personnel costs required directly by the provision of human resources functions in the construction and construction sector, and (2) If the service of the construction and assembly facility exists with respect to the other company from different bundles of services, they shall be set out in a uniform manner, unless separate Transfer prices for each performance bundle result in an individual result, which results in the (3) The service provided by the construction and assembly facility to the rest of the company is to be calculated on an ongoing basis in accordance with the service provided, irrespective of whether the construction and the construction work and the construction work are carried out in the same way as the other companies. An assembly company shall have a payment claim against the client only upon acceptance or partial acceptance of the service due. A different settlement between the construction and assembly premises and the rest of the enterprise should be made only if this results in a result which is better in accordance with the foreign comparison principle. (4) Services which are otherwise Companies in connection with the construction and assembly contract of the construction and assembly company are provided, even if they are not provided as compared to the construction and assembly plant, if they are in connection with the service of the construction and assembly plant. The assembly plant is located. Unofficial table of contents

Section 33 Increasing debt-rightful relationships in special cases

(1) By way of derogation from § 32, the transfer price shall be determined on the basis of a profit-sharing method for the debt-related relationship between the construction and assembly premises and the rest of the undertaking, if:

1.

The personnel functions, which are carried out in each case by the construction and assembly site as well as by the other company with a view to the fulfilment of the construction or assembly contract, do not constitute routine activity and result in each case in each case. to be associated with comparable opportunities and risks, or

2.

For the performance of the construction or assembly contract both from the construction and assembly plant as well as from the rest of the company unique intangible values are developed or acquired by themselves.

(2) The allocation key to be used for the profit sharing method referred to in paragraph 1 shall be determined by the contributions made by the construction and assembly plant and by the other undertaking for the construction and assembly contract. . The amount of contributions paid is calculated according to the cost of the relevant personnel functions, each of which is carried out by the construction and assembly facility and by the rest of the company for the construction and assembly contract. An appropriate proportion shall also be taken into account

1.

the research and development costs of the intangible assets used, and

2.

on futile acquisition costs for construction and assembly contracts which have not been concluded.

Another allocation key is to be applied if it leads to a result of the construction and assembly facility in individual cases, which corresponds better to the foreign comparison principle. Unofficial table of contents

Section 34 Transitional arrangements for construction and assembly facilities

(1) The construction and assembly company may have the income of a construction and assembly plant already established before 1 January 2013 until completion of the construction or assembly plant in accordance with the tax recognised hitherto by the financial authority. (2) The construction and assembly companies may, notwithstanding § 1 (5) of the External Tax Act, apply paragraph 1 also to construction and assembly facilities, which will be justified in 2013 and 2014, if it is

1.

Points out that the calculation of its services has been based on the application of the tax principles recognised so far by the financial authority, and

2.

it is credible that the rules of this Regulation are based on its calculation.

Section 5
Special features for production facilities

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Section 35 General

(1) § § § 1 to 17 shall apply for a permanent establishment which is created for the promotion of natural resources and ends after the completion of the funding (Förderoperationstätte), insofar as no deviating arrangement is made in this section. A company to which a production facility belongs is a mining company or a petroleum or natural gas company. (2) An exploration right is the right to search for or promote mineral resources. Unofficial table of contents

§ 36 Special assignment schemes

(1) An exploration right which is used for the purpose of carrying out personnel functions in a mining company or a petroleum or natural gas undertaking is to be assigned to this production site only if there is a in addition,

1.

the personnel functions are exercised in connection with the acquisition or production of the exploration right, or

2.

the distribution or recovery of the mineral resources obtained.

The assignment in accordance with the first sentence shall require that the meaning of the above-mentioned personnel functions carried out in the funding establishment with regard to the right of exploration shall be subject to the personnel functions of the other person (2) If the exploration right referred to in paragraph 1 cannot be attributed to the support establishment, it shall be assigned to the rest of the undertaking and shall be considered to be free of charge as the support establishment. (3) By way of derogation from Paragraph 2 is the exploration right of the production facility at the time of the To allocate the support activity if the mining company or the oil or natural gas company proves that the state in which the production facility is located also assumes this allocation. The allocation shall be maintained as long as the State in which the production facility is located is based on the corresponding allocation of the right of exploration. (4) In the cases referred to in paragraph 2, the allocation of assets shall apply to a Nurseries § 31 (1) to (3) mutatily. In the cases referred to in paragraph 3, § § 5 to 8 shall apply to the allocation of assets to a support establishment. Unofficial table of contents

Section 37 Increasing debt-rightful relations

(1) The activity of a production facility, using an exploration law acquired by a mining company or a petroleum or natural gas undertaking, shall be carried out on the basis of a debt-related relationship to be approximated (§ 16), which can be suspected to be regarded as a service provided by the production facility to the rest of the enterprise. The transfer price for the service is to be determined according to a cost-oriented transfer pricing method. The costs of the production facility to be taken into account for the application of a cost-based transfer pricing method shall include, in particular, all the personnel costs required directly by the provision of (2) If the application of § 36 (3) leads to a change in the assignment of the exploration right, a secondary school-law relationship within the meaning of § 16 (1) (1) is to be found. between the rest of the undertaking and the assisted establishment, which shall be subject to a sale . However, by way of derogation from the second sentence of paragraph 2, a mining undertaking or a petroleum or natural gas undertaking may, by way of derogation from the second sentence of paragraph 2, be subject to a price for the debt-related relationship to be adopted in the sense of the Paragraph 2 shall be deemed to be a foreign comparative price despite the fact that it is less than the amount to be applied in accordance with Article 16 (2), first sentence. A prerequisite for this is that the mining company or the oil or natural gas undertaking

1.

proves that this will avoid double taxation, and

2.

an amount equal at least to the amount corresponding to the expenses incurred in the mining undertaking or in the oil or gas undertaking in respect of the exploration right up to the time of the change in the assignment.

(4) In the case of § 36 (3), in view of the functional and risk analysis for the determination of the income of the production facility, it should be noted that the exploration right is to be assigned to the production facility. This shall apply as long as the state in which the production facility is located originates from an assignment of the exploration right to the production facility. Unofficial table of contents

Section 38 Transitional arrangements for production facilities

(1) The mining undertaking or the oil or natural gas undertaking may, in accordance with the date of the termination of the production facility, have the income of a production facility already established before 1 January 2013, in accordance with the conditions previously recognised by the financial authority. (2) The mining company or the oil or natural gas company may, notwithstanding § 1 (5) of the External Tax Act, apply paragraph 1 also to production sites for which the exploration right already in the year Purchased or manufactured in 2013 or 2014 if it is

1.

proves that its calculation has been based on the application of the principles recognised so far by the financial authority, and

2.

it is credible that the rules of this Regulation are based on its calculation.

Section 6
Permanent Representatives

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Section 39 Permanent Representatives

(1) This Regulation shall apply mutationally to permanent representatives within the meaning of Section 13 of the Tax Code. (2) If a permanent representative is a legally independent company with its own staff within the meaning of Article 2 (4), the following shall be: for the appropriate application referred to in paragraph 1, by way of derogation from § 2 (3), all staff functions exercised by the staff of the permanent representative for the representative shall be treated as their own personnel functions of the representative.

Section 7
Final provisions

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§ 40 First-time application

This Regulation shall apply for marketing years beginning after 31 December 2014. Unofficial table of contents

Section 41 Entry into force

This Regulation shall enter into force on the day following the date of delivery. Unofficial table of contents

Final formula

The Federal Council has agreed.