Trusts in German Civil Law
Trusts are virtually unknown in German Civil law, and German real property law does not allow for the transfer of assets located in Germany to a trust. However, a foreign trust is not without effect in Germany. Instead, the German probate court (Nachlassgericht) will have to determine a German equivalent, such as durable execution of the estate (Dauertestamentsvollstreckung), subsequent heirship (Vor- und Nacherbschaft), usufruct (Nießbrauch), or a combination thereof.
Applicable Tax Laws
The taxation of estates and gifts in Germany is codified in the German Inheritance and Gift Tax Act (Erbschafts- und Schenkungsteuergesetz). Additionally, other German tax laws, such as the German General Fiscal Code (Abgabenordnung) and the German Valuation Act (Bewertungsgesetz), contain relevant provisions.
Introduction to the German Inheritance and Gift Tax Act
Germany imposes German inheritance tax (Erbschaftsteuer) on all worldwide transfers mortis causae if either the beneficiary or the deceased is a German tax resident (Inländer) at the time of his/her death (§ 2 ErbStG).
German gift tax (Schenkungsteuer) is imposed on any gift (Schenkung) and any other inter vivos transfer, irrespective of the situs of the transferred asset, if either the donor or the donee was a German tax resident (Inländer) at the time of the transfer.
The transfer of German domestic property (Inlandsvermögen) is subject to German gift or inheritance tax irrespective of the tax residence of the transferor or transferee.
Contrary to an estate tax (e.g., UK IHT or South African Estate Duty), the German inheritance tax (Erbschaftsteuer) does not attach to the estate itself, but instead to the acquisition of each beneficiary. Consequently, tax-free exemptions are granted per capita, and the tax rate depends on the value of the acquisition of the beneficiary and not the total value of the estate.
Transfers upon death or inter vivos between the same persons within 10 years are aggregated, and the tax is (re-) calculated based on the aggregated taxable acquisition. See § 14 ErbStG.
The applicable tax rates and the tax-free exemptions are dependent on the familial relationship between the deceased and the beneficiary.
For more information on the calculation of the German inheritance tax, please see our article “The German Inheritance Tax and for more information on German gift tax, please see our article German Gift Tax.
Trusts as Deemed Legal Entities for Inheritance and Gift Tax Purposes
Historical Background
Prior to 1999, transfers of assets to trusts were not taxed by the Inheritance Tax Act. Similar to German Civil Law, the German Inheritance and Gift Tax Act (ErbStG) did not recognize trusts as legal entities. The German government enacted tax provisions applicable to transfers to certain trusts.
Law
The law does not explicitly use the term "trust". Instead, it uses the term "foreign pool of assets with the purpose to bind assets (Vermögensmasse ausländischen Rechts, deren Zweck auf die Bindung von Vermögen gerichtet ist)".
Foreign Pool of Assets
While the wording of the law is broad, it is well settled that a trust is not a foreign pool of assets (Vermögensmasse ausländischen Rechts) if the grantor retains control and remains the (economic) owner of the assets transferred to the trust, because he is the sole trustee and remains in (absolute) control of the trust assets.
Example: A transfers assets to himself as sole trustee of a revocable trust and retains comprehensive rights, in particular the right to change/amend or revoke the trust. Under the terms of the trust, he is the sole beneficiary during his life, and upon his death, the assets shall pass to his son S. The trust is not considered a "foreign pool of assets". Instead, A is considered the owner.
If the person in this example retains comprehensive rights and control, but is not the (sole) trustee, the trust should still not be characterized as a "foreign pool of assets" if it is comparable to a fiduciary arrangement (Treuhandverhältnis).
Similarly, a trust is not a foreign pool of assets if the beneficiary of the trust is in complete control of the trust.
Example: A and B create a joint trust. Upon the death of A, two sub-trusts are created: The survivor`s trust and the decedent`s trust. Under the terms of the trust, B may change/amend, or revoke sub-trust B or distribute the total income and principal to herself. B is the economic owner of the trust assets, and the trust is not a pool of assets for German inheritance and gift tax purposes.
It should be noted that the characterization by German tax authorities may change if the grantor dies or relinquishes retained rights.
In light of the issues discussed above, trusts established abroad in which the grantor does not maintain all rights, including the right to revoke, shall be deemed a "foreign pool of assets". Irrevocable trusts, by their nature, require the Grantor to relinquish the right to revoke and would be deemed a “foreign pool of assets.”
Binding of Assets
The law governing a foreign pool of assets is only relevant for inheritance and gift tax purposes if the purpose of the transfer is to bind assets. This is generally the case if, under the terms of the trust, the trustee holds the trust assets for a considerable time in favor of a beneficiary without being obligated to distribute the trust assets to the beneficiaries without delay (like an executor or administrator).
Trust as a Legal Entity
All trusts that qualify as a pool of assets are, for inheritance and gift tax purposes, treated as legal entities.
The entity shall be deemed a German tax resident if its registered office (Sitz) or place of effective management (Ort der Geschäftsleitung) is situated in Germany. See § 2(1) d) ErbStG. As a German tax resident, the foreign pool of assets would be liable for German inheritance taxes on transfers to the foreign pool of assets. See § 20(1) S. 2 ErbStG
All trusts that are not deemed to be legal entities under German tax law are referred to as “transparent trusts”. If not explicitly stated otherwise, the following discussion solely applies to an opaque trust (intransparenter trust)
Taxation of Asset Transfers to Inter Vivos Trusts
Pursuant to § 7(1) Nr. 8, S. 2 ErbStG, any inter vivos transfer of assets to an opaque trust (intransparenter trust) is subject to German gift tax (Schenkungsteuer).
Please note: If neither the grantor nor the non-transparent trust is a German tax resident (Inländer), only the transfer of German domestic property (Inlandsvermögen) is subject to German gift tax. See § 2 ErbStG.
An asset transfer from a non-transparent trust is subject to the least favorable tax class III, as there is no familial relationship between the transferor and the trust. Accordingly, the transfer simply receives a minimal tax-free exemption of € 20.000 and is subject to an initial tax rate of 30%.
Taxation of a Transfer to a Trust upon the Death of the Grantor
If a non-tax-transparent trust is created upon the death of the grantor or a transparent trust becomes non-transparent, the transfer to the non-transparent trust is subject to German inheritance tax (Erbschaftsteuer) under § 3(2) Nr. 2 ErbStG, and the transfer is taxed in tax class III.
Please note: If the successor trustee shall, without delay, distribute the trust assets outright to a German resident beneficiary, the trust is tax transparent and, from a German perspective, the beneficiary`s acquisition and not the transfer to the trust will be subject to German inheritance tax.
Taxation of Distributions during the Existence of the Trust
Pursuant to § 7 (1) Nr. 9, S 2 ErbStG, any transfer to an intermediary beneficiary (Zwischenberechtigter) during the existence of an opaque trust is subject to German gift tax.
In its decision dated 27th September 2012, II R 45/10, the Federal Fiscal Court (Bundesfinanzhof) held that any person who receives trust distributions during the existence of a trust is such an intermediary beneficiary.
However, in its decision dated July 3, 2019, II R 6/16 (affirmed: decision dated June 25, file no. II R 31/19) the Federal Fiscal Court held that distributions from a non-transparent trust can only be subject to German gift tax if the beneficiary has “rights to the assets and/or income of the trust independently of a distribution decision of the trustee.” The substantive decision states that an "abstract-general right to the distribution" or an "interest in the capital and/or income that cannot easily be withdrawn" may qualify as a “right” in this meaning. As a consequence, distributions from a trust may not be subject to German gift tax if the trustee’s discretion is broad.
As there is no familial relationship between the trust (as deemed legal entity) and the beneficiary, one may think that the unfavorable tax class III applies to the taxation of distributions from a trust. However, § 15 para 2 Sentence 2 ErbStG states that the tax class is determined by the familial relationship between the grantor and the beneficiary.
Example: In 2015, grantor A transferred $500,000 to an irrevocable trust. The trustee is T, a professional trust manager without a residence (Wohnsitz) in Germany. T distributes $ 500,000 to A`s son, B. The distribution is taxed in the favorable tax class I (tax-free exemption: € 400,000, initial tax rate: 7 %).
Any distribution from the trust within the 10 years preceding the final distribution is added to the taxable acquisition for the calculation of the tax. See § 14 ErbStG.
Taxation of Final Distribution (Dissolution of Trust)
The final distribution of trust assets to beneficiaries is subject to German gift tax under § 7 Section 1 lit. 9 Sentence 2 ErbStG. The applicable tax class is determined by the familial relationship between the Grantor and the beneficiary (See § 15 Section 2 Sentence 2 ErbStG). Any distribution by the opaque trust within the 10 years preceding the final distribution is added to the taxable acquisition for the calculation of the tax. See § 14 ErbStG.
German Inheritance/Gift Tax Return and Duty of Disclosure
There is no obligation to file a German inheritance tax return (Erbschaftsteuererklärung) or a German gift tax return (Schenkungsteuererklärung) unless an inheritance/gift tax office demands it. However, according to § 30 ErbStG, the beneficiaries are obliged to report the transfer to the local inheritance tax office within 3 months after gaining knowledge of the taxable acquisition (Erwerb). For further information on the reporting obligation, please see our article German Inheritance Tax: Duty to report an Inheritance from Abroad.
Based on the information received from the beneficiaries, the financial institutions and other sources (e.g. German notaries, German probate courts or German Consuls), the German tax authorities determine if German inheritance tax may be due and, if this is the case, ask to file an inheritance tax return from any person involved in the transfer. The filing period is generally one month. Upon application, an extension of the filing period is granted in most cases. For further information on the German inheritance tax return and the tax assessment, please check our article German inheritance tax return: preparation, filing, and tax assessment.
