Tax requirements for clearing accounts between cross-border affiliated companies
(parent- / subsidiary companies)
In the case of group structures, clearing accounts between the affiliated companies involved are to be regularly accounted for.
On the one hand, service relationships between the affiliated companies are mapped via these clearing accounts. They are on the other hand, often used to secure liquidity and (mostly short-term) financing within the corporate group.
This also applies for cross-border participation structures.
In the case of domestic sales subsidiaries, for example, commission income from the sale of products of the foreign parent company or other foreign group companies is often shown in such clearing accounts.
Often there are also financial contributions from the foreign parent company regarding the business activities of the domestic subsidiary, for example in the course of transfer pricing agreements such as the cost-plus procedure for domestic service subsidiaries.
Conversely, purchases in the group or group allocations are regularly debited to the subsidiary’s clearing accounts. Excess liquidity of the subsidiary is partially made available to other companies in the group.
When designing these clearing accounts, tax requirements must be observed. Basically questions always revolve around the extent to which the conditions agreed between the companies correspond and withstand the arm’s length principle.
Particularly the following points regarding clearing accounts between group companies are taken up and questioned by the tax authorities, for example in the context of external tax audits or assessments:
- agreed interest rate
- Collateral, in particular the question of the relevance of the so-called group retention for loans to the subsidiary
- time span, repayment
- Treatment of currency losses or gains
- Interest waiver
When designing the framework conditions for clearing accounts, it is always important to ensure compliance with the tax requirements for their recognition in advance. As a Munich tax firm operating in the field of international tax law, we, Alexia Huber & Partner Steuerberatungsgesellschaft mbB, are regularly involved with questions relating to clearing accounts and compliance with the arm’s length principle and advise our clients accordingly.
If the tax office comes to the conclusion that agreements on clearing accounts cannot be brought into line with the arm’s length principle, the result will be adjusted for tax purposes as a hidden profit distribution or a correction of the income according to § 1 AStG.
The current high court decision of the BHF (judgment of November 27, 2019, Az. I R 14/16) has shaken the previous understanding of the hierarchy regarding the order in which both correction standards are applied. It was previously assumed that there was no room for corrections in accordance with Section 1 of the AStG in the area of application of the hidden profit distribution. Now both regulations can be considered for a corrrection.
This opens up a new scope for negotiation in external tax audits with the goal to assign undisputed violations to the correction area of § 1 AStG, avoiding the distribution burden that might otherwise arise. Depending on the country of residence of the parent company, in the absence of a certificate of exemption, this will always lead to a liquidity saving and in individual cases, due to the fact that there will be no distribution burden, it will actually lead to a definite tax reduction compared to a classification as a hidden profit distribution.
As tax advisors in Munich, we particularly advise subsidiaries of foreign companies (sales and service companies) and prepare their financial accounting, reporting, payroll accounting as well as the annual financial statements of these corporations.