Tax - The One Pager: guidelines on documentation of outbound loans
September 28, 2026
Tax - The One Pager: guidelines on documentation of outbound loansSeptember 28, 2026 International tax / transfer pricing (“TP”) / group financingIn its decision I R 29/22 of 6 May 2026, the German Federal Tax Court (“FTC”) clarified key requirements for TP documentation of intercompany loans. The ruling reinforces Chapter X of the OECD TP Guidelines 2022, emphasizing the ex-ante perspective for the arm’s length test, the obligation to assess security arrangements under the applicable foreign law, and the possibility of risk compensation through higher interest rates. The case A German parent company (30% shareholding) granted a loan and several top-up loans (Nachschussdarlehen) to a Ukrainian subsidiary for hotel construction. The interest rates were around 12% p.a. and no valuable securities such as a land lien were granted. Under Ukrainian law, it is not unusual to not receive valuable securities for loans relating to the real estate sector as the developer does not become the owner of the property until it is inspected by the authorities. Usually, as a security claims from contracts with third parties are assigned. The principal as well as any interest thereon was written off. View of the tax authorities The tax authorities and the lower tax court took the view that the loan agreement did not meet the arm’s length principle as no security was granted by the Ukrainian subsidiary and the Ukrainian subsidiary did not pay any interest (ex-post). Therefore, the write-off of the principal as well as the interest thereon by the German parent company was not recognized for tax purposes. The profit of the German parent company was increased under the regime of the German Foreign Tax Act (AStG). Ruling The FTC held that even if no security has been granted, the loan agreement may meet the arm’s length principle. The tax authorities and the lower tax court failed to determine whether such security is customary under foreign law. Furthermore, a missing security may be compensated by a higher interest rate (risk compensation). The non-payment of interest is also no reasoning for non-compliance with the arm’s length principle as a loan agreement must always be analysed for tax purposes at the time it was agreed (ex-ante perspective, Sec. 1 (3) sentence 4 AStG). Furthermore, it was stated that the protection of an initial investment may be considered as an economic reason for a top-up loan and even a third party may grant a loan to protect such investment. As a result, the case was referred back to the lower tax court for a new ruling. Key take-aways German outbound loan agreements should be well documented for transfer pricing purposes in accordance with Chapter X of the OECD TP Guidelines 2022 and the German Administrative Guidelines. Such documentation should be made at the time of the loan agreement (ex-ante) and should include:
Latest Insights
Latest News
Latest Events
guides and reports October 07, 2026 Technology, AI and the changing legal landscape of M&A guides and reports October 07, 2026 How AI is democratizing M&A for buyers and investors legal updates October 07, 2026 EU: Proposed KIDS Act Targets Online Child Safety guides and reports October 07, 2026 M&A predictions: how AI and technology could reshape deals firm news October 07, 2026 Faster deals, deeper diligence: AI is transforming the legal landscape of M... firm news October 05, 2026 Leading finance partner joins Eversheds Sutherland firm news October 01, 2026 Eversheds Sutherland Switzerland appoints Dr. Michael Faske as new Partner client news September 21, 2026 All change: Eversheds Sutherland advises DfT on Chiltern Railways transitio... Events And Training virtual Energy Transition Series: Energy Transition and Pricing Volatility October 08, 2026 10:00 ET | 15:00 BST | 16:00 CET in-person Labor relations conference - turning legal change into workplace reality October 08, 2026 10.00am - 4.00pm (BST) London, United Kingdom virtual Immigration UK – Right to work and compliance masterclass October 15, 2026 9.30am - 12.30pm (GMT) Virtual |