BMF revised letter dated 04.02.2015 on the legal implementation of the ECJ ruling of 9 October 2014 in case C-326/12 (van Caster and van Caster).
The main change here is that, in deviation from the lump-sum taxation, the application of the verification rules will only apply to income from EU/EEA investment funds, which means that the scope of application will be severely restricted compared to the original version, as this will not allow third-country funds to carry out a white calculation. For the original letter dated 4 February 2015 and the tax reduction options it opened up, see also Elser/ Thiede in NWB Erben + Vermögen, 03/2015, page 104.
In light of the ECJ ruling of 21 May 2015 (Case C-560/13; Wagner-Raith), the BMF presumably considers itself entitled to restrict the violation of the free movement of capital by Section 6 InvStG to EU/EEA investment funds.
Background: In its ruling of 21 May 2015, the ECJ considered the scope of application of the grandfathering clause of Art. 64 TFEU to have been opened for the predecessor regulation of section 6 InvStG, the standard of section 18 para. 3 AuslInvestmG, which was in force up to and including 2003, according to which a restriction of the free movement of capital for third countries is justified for regulations that have existed since 31 December 1993. In this context, the BMF could consider the regulation of Section 18 (3) AuslInvestmG through Section 6 InvStG to have essentially continued to exist since 31 December 1993. Although this view cannot be endorsed, the new BMF circular dated 28 July 2015 must first be applied for assessments. The extent to which the analogue application of the rules on proof can be invoked in appeal proceedings must be examined on a case-by-case basis.
