Letter of Exchange

CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE FEDERAL REPUBLIC OF GERMANY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND CAPITAL AND TO CERTAIN OTHER TAXES

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE FEDERAL REPUBLIC OF GERMANY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND CAPITAL AND TO CERTAIN OTHER TAXES, TOGETHER WITH A RELATED PROTOCOL, SIGNED AT BONN ON AUGUST 29, 1989

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, October 24, 1989.

The PRESIDENT, The White House.

     THE PRESIDENT: I have the honor to submit to you, with a view to its transmission to the Senate for advice and consent to ratification, the Convention between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on income and Capital and to Certain Other Taxes, together with a related Protocol, signed at Bonn on August 29, 1989.

   The Convention will replace the existing convention which was signed at Washington on July 22, 1954 and amended by the protocol of September 17, 1965.

     The Convention will reduce the withholding tax on direct investment dividends, on a reciprocal basis, from the present 15 percent to 10 percent in 1990 and to the permanent rate of 5 percent in 1992. This will be a major benefit to United States multinationals with investments, or plans to invest, in the Federal Republic of Germany. The United States Government and the United States business community have been pressing the Germans for such a change since the introduction of the present German integrated tax system in 1977. This withholding reduction will also increase the attractiveness of investment in the United States for German multinationals.

     The Convention also introduces several changes necessary to accommodate important aspects of the Tax Reform Act of 1986. These include, principally, provision for the imposition of a branch tax and strong measures to prevent “treaty shopping.” The United States branch tax, prohibited under the existing convention, will be imposed on United States branches of German corporations for taxable years beginning on or after January 1, 1991. The proposed anti-abuse provision is uniquely tailored to take account of the practical realities of European integration in a manner that promises to become a model for future treaties with European partners.

     A number of provisions in the Convention will have significant impact on particular groups of income recipients.

     The Federal Republic of Germany will reduce its withholding rate on dividends paid to United States portfolio investors, on a non-reciprocal basis, from 15 percent to 10 percent. The United States will treat this reduction as a partial imputation refund, analogous to the imputation credit for corporate tax which German shareholders receive in the Federal Republic with respect to such dividends. This treatment in the United States will assure that the benefit of the German reduction inures to the United States shareholders rather than to the United States Treasury. The United States withholding rate on such dividend to German investors will remain at 15 percent.

     Provisions of the existing convention permit German resident investors to make portfolio investments in the United States through United States Regulated Investment Companies (RICs) and receive an exemption on the income in the Federal Republic. This exemption had been intended only for direct investment income. The Convention will correct this abuse and make such income taxable in the Federal Republic, with a credit for United States tax, effective in 1991, one year after the general effective date for the Convention’s provisions. The additional year is intended to allow German investors to adjust to the change in a way which would minimize market disruption. A similar rule will apply to certain German investments in United States Real Estate Investment Trusts (REITs).

     In addition, the Convention will provide for exemption of German residents from United States tax on United States Social Security benefits.

     The Convention further provides both States with the flexibility to deal with “hybrid” financial instruments that have both debt and equity features. In the Federal Republic of Germany this will include sleeping partnership interests and in the United States equity kicker loans. As long as the State in which payments with respect to such instruments arise permits such payments to be deducted in calculating the taxable income of the payer, that State will be permitted to apply its statutory withholding rate rather than the reduced treaty rate otherwise applicable to the payments.

     In general, the provisions of the Convention will have effect in 1990. For taxes levied on an assessment basis, the Convention will have effect for taxable years beginning on or after January 1, 1990. For income subject to withholding at source, the Convention will have effect for payments made on or after January 1, 1990.

     Two exchanges of notes and a memorandum of understanding are included for information only.

     A technical memorandum explaining in detail the provisions of the Convention is being prepared by the Department of the Treasury and will be submitted separately to the Senate Committee on Foreign Relations.

    The Department of the Treasury, with the cooperation of the Department of State, was primarily responsible for the negotiation of the Convention. It has the full approval of both Departments.

     Respectfully submitted,

JAMES BAKER III.

Enclosures: As stated.

LETTER OF TRANSMITTAL

THE WHITE HOUSE, February 5, 1990.

To the Senate of the United States:

     I transmit herewith for Senate advice and consent to ratification the Convention between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital and to Certain Other Taxes, together with a related Protocol, signed at Bonn on August 29, 1989. I also transmit the report of the Department of State on the convention.

     The convention replaces the tax convention that was signed with the Federal Republic of Germany on July 22, 1954, and amended by the protocol of September 17, 1965. It is based on model income tax treaties developed by the Department of the Treasury and the Organization for Economic Cooperation and Development. However, it includes a number of new provisions to accommodate important aspects of the Tax Reform Act of 1986, such as the imposition of a branch tax and strong measures to prevent “treaty shopping.”

     I recommend the Senate give early and favorable consideration to the convention, together with a related protocol, and give its advice and consent to ratification.

GEORGE BUSH.

NOTES OF EXCHANGE 1

DER STAATSSEKRETAR DES AUSWARTIGEN AMTS

BONN, 29, August 1989

His Excellency
Mr. Vernon Walters
Ambassador of the United States of America
Bonn

Excellency,

     I have the honor to refer to the Convention signed today between the Federal Republic of Germany and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital and to certain ether Taxes and to inform you on behalf of the Government of the Federal Republic of Germany of the following:

     In the course of the negotiations leading to the conclusion of the Convention signed today, the negotiators developed and agreed upon a memorandum of understanding intended to give guidance both to the taxpayers and the tax authorities of our two countries in interpreting Article 28 (Limitation on Benefits). This memorandum of understanding, attached to this Note, represents the current views of the Government of the Federal Republic of Germany with respect to Article 28. It is my Government’s view that as we both gain experience in administering the Convention, and particularly Article 28, the competent authorities may develop and publish amendments and further understandings and interpretations.

     If this position meets with the approval of the Government of the United States of America, this Note and your Note in reply thereto will indicate that our Governments share a common understanding of the role of the memorandum of understanding relating to Article 28 of the Convention.

     Accept, Excellency, the expression of my highest consideration.

(s) Dr. Hans Werner Lautenschlager

EMBASSY OF THE UNITED STATES OF AMERICA

Bonn, August 29, 1989

His Excellency,
Dr. Hans Werner Lautenschlager
State Secretary of the Foreign Office Bonn

Excellency,

     I have the honor to confirm receipt of your Note of today’s date which reads as follows:

     “I have the honor to refer to the Convention signed today between the Federal Republic of Germany and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital and to certain other Taxes and to inform you on behalf of the Government of the Federal Republic of Germany of the following:

     In the course of the negotiations leading to the conclusion of the Convention signed today, the negotiators developed and agreed upon a memorandum of understanding intended to give guidance both to the taxpayers and the tax authorities of our two countries in interpreting Article 28 (Limitation on Benefits). This memorandum of understanding, attached to this Note, represents the current views of the Government of the Federal Republic of Germany with respect to Article 28. It is my Government’s view that as we both gain experience in administering the Convention, and particularly Article 28, the competent authorities may develop and publish amendments and further understandings and interpretations.

     If this position meets with the approval of the Government of the United States of America, this Note and your Note in reply thereto will indicate that our Governments share a common understanding of the role of the memorandum of understanding relating to Article 28 of the Convention.”

     I have the honor to inform you. that my Government agrees to the above.

     Accept, Excellency, the expression of my highest consideration.

(s) V.A.W.

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