At issue were the tax consequences from (alleged) “key account expenses” paid by “Key Account – X GmbH” to a related party, X FL.
X GmbH provided marketing services for an unrelated German manufacturer of machine tools Y. The marketing contract between X GmbH and Y was the basis for the intensive cooperation between Y and X GmbH in the years in dispute.
In connection with the intensification of the business relationship with Y, X GmbH took measures regarding a cross-border restructuring. The owners of the group had X FL Lichtenstein established as of March 1998. The business purpose of X FL was “conception and consultancy in the areas of advertising, marketing and public relations”.
By invoice dated 1 September 1998, X GmbH informed X FL of the following:
“For the provision of (A) as a key account we charge you a one-off goodwill in the amount of ATS 8,000,000.”
On 3 September 1998 A, as managing director of X GmbH, and M, as member of the board of directors of X FL, signed the “Cooperation Agreement (Y)”. In this contract, X GmbH as “principal” transferred the advertising contract received from Y to X FL as “contractor” with regard to certain activities listed in detail, which were subsequently summarised under the term “key accounting”. In return, it was agreed that X GmbH would reimburse X FL for the ordinary expenses incurred in connection with the fulfilment of the order and pay 25% of the total order volume (payments by Y to X GmbH). In the period from 1998 to 30 September 2011, X GmbH recorded “key account expenses” in the amount of approximately EUR 82 million as profit-reducing.
The tax authorities, examined these transactions between X GmbH and X FL and came to the conclusion that the payments made by X GmbH to X FL under the name of “key account expenses” were not matched by an equivalent service. The prerequisite of a concrete and detailed description of services, which was necessary for the recognition of such payments, was lacking. The “key account” sale transaction of September 1998 was not to be recognised for lack of arm’s length and could not form the basis for the tax recognition of the later current payments. The chosen legal structure constituted abuse within the meaning of section 22 of the BAO. The reductions in assets at X GmbH were hidden profit distributions. An assessment regarding corporate income tax 2005 to 2008 was issued.
X GmbH appealed against the decision.
The appeal was allowed by the Federal Tax Court where a ruling in favour of X Gmbh was issued.
This ruling was then appealed by the tax authorities to the Administrative court of appeal.
Judgement of the Court
The Court allowed the appeal and decided in favour of the tax authorities.
Business expenses are those expenses or expenditures that are caused by the business (§ 4 para. 4 EStG 1988).
The taxable profit of a corporation may not be reduced by transactions that are not caused by the business activity of the corporation but by the corporate relationship. For the question of whether a measure is caused by the company, it is decisive whether it would also have been taken by persons who are strangers to each other (cf. VwGH 11.2.2016, 2012/13/0061, mwN).
An arm’s length comparison requires that the services rendered and remunerated are recorded and presented in detail in a concrete and detailed manner. The description of the services must be concrete to such an extent that it is possible to estimate the exact market value of the service and subsequently determine whether a third party would have been willing to provide the consideration that was provided by the related party. A particularly precise description of the service is required in particular if the subject matter of the contract consists of the provision of services that are difficult to grasp (e.g. “efforts”, consultations, mediation of contacts, transfer of know-how) (cf. VwGH 28.1.2003, 99/14/0100, VwSlg. 7786F; 15.9.2016, 2013/15/0274, mwN).
In the appeal case, the Federal Supreme Finance Court therefore had to examine which services X FL had provided in detail and make (concrete and detailed) findings in this regard (cf. VwGH 26.2.2004, 99/15/0053).
Such concrete and detailed findings are not to be found in the contested decision. The Federal Finance Court only referred in general to “key account” services. The contested decision does not specify which services were involved in detail. Insofar as the contested decision refers to the decision of the Federal Supreme Finance Court in the freezing proceedings (decision of 18 November 2015 in the continued proceedings pursuant to VwGH 30.6. 2015, 2012/15/0165), there is indeed a description of the content of the contract between X FL and X GmbH (acquisition of customers, agreement of the terms of the contract, cultivation and maintenance of existing customer contacts through regular visits by the respective management, preparation of advertising concepts, briefing with the customers and their representatives as well as monitoring of the advertising campaigns; selection and appointment of any subcontractors, agreement of the terms of the contract, preparation of the advertising concept, preparation of the marketing mix, conception of the marketing plan, selection of advertising media and their use). However, it is not clear which of these services were actually provided in the individual years in dispute. There is also no description of services that could have been used to determine the market value of the services. Insofar as it was also stated in that decision that in the private expert opinion of an expert for marketing, both the key account activities of X FL in relation to Y and the activities of X GmbH were described and evaluated in detail, it was stated in the contested ruling on this private expert opinion that it contained many generalities and had little reference to the specific case; the expert opinion also did not refer to the actual historical processes and the documented contractual situation or negated them.
The reference to the preliminary appeal decision of 14 April 2015 also does not shed light on which services were actually provided by X FL, as it merely states that X FL had provided “some operational activity” for the benefit of X GmbH.
The contested ruling was therefore to be set aside in the contested scope (corporate income tax 2005 to 2008) pursuant to § 42 para. 2 no. 3 VwGG due to illegality as a result of a violation of procedural provisions.
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