Gold ETCs remain tax free

Around three months ago, the Federal Ministry of Finance prepared a draft bill for an annual tax law 2020, with which it planned, among other things, to now also include capital claims in accordance with § 20 I No. 7 S. 1 lit. b) To subject the Income Tax Act to tax liability, provided that instead of repayment or remuneration, a payment in kind has been promised or made. So-called gold ETCs (Exchange Traded Commodities), which granted the owner a right to delivery of the purchased amount of gold, would be, according to this draft, for capital assets i. S. d. § 20 EStG, which according to § 2 I 1 No. 5 EStG would be taxed. The proposed change in the law is based on a dated Bundesfinanzhof identified loophole (see only BFH, Ruling v. 06.02.2018, Az. IX R 33/17), according to which bearer bonds, like the gold ETCs, are not subject to tax. RUGE FEHSENFELD reported in detail on this legislative proposal back in August.

However, owners of such gold ETCs can breathe a sigh of relief: The federal government is not planning any further taxation of gold ETCs. The government announced this on the basis of a small request from the FDP parliamentary group. It literally says:

(…) The Federal Government does not currently intend to change Section 20 Paragraph I Number 7 EStG. “(BT-Drucks. 19/22447, p. 3)

The statement is clear and in this sense also conveys clarity: The legislature has recognized the alleged “regulatory gap” with regard to gold ETCs. Nevertheless, he is currently not planning to fix this in his favor. At least at the moment, it should therefore be in line with the legislature’s will not to subject bearer bonds to taxation in accordance with the highest court rulings.

Our legal tip: While we originally advised the sale of gold papers in order to benefit from the tax exemption of the sale of gold ETCs before the amendment was made, such an approach is now unnecessary. Since the federal government does not plan to change § 20 I No. 7 EStG, the legal situation with regard to the tax exemption from a holding period of one year will initially not change.

We will be happy to provide you with comprehensive advice on the sale of gold ETCs and all other tax law issues. You can reach us on 040/528 403 – 0 or by email at info@rugefehsenfeld.de.

RUGE FEHSENFELD partnership mbB lawyers tax consultants

Sascha Fehsenfeld LL.M.
Tax advisor and lawyer
Specialist lawyer for tax law
Specialist advisor for international tax law
Specialist lawyer for inheritance law

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