New obligations for platform operators

Background

The le­gis­la­tive in­itia­tive im­ple­ments the so-cal­led DAC7 Di­rec­tive of the EU into na­tio­nal law, which is re­qui­red un­der EU law by De­cem­ber 31, 2022. The aim is to give tax aut­ho­ri­ties bet­ter cross-bor­der ac­cess to in­for­ma­tion re­qui­red for the ta­xa­tion of in­come ge­ne­ra­ted by using di­gi­tal plat­forms. In Ger­many, the Ger­man Fe­deral Tax Of­fice (BZSt) is re­spon­si­ble for col­lec­ting and for­war­ding the re­le­vant data to the tax aut­ho­ri­ties of the other EU mem­ber sta­tes.

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The fol­lo­wing ex­plana­ti­ons pro­vide an in­itial over­view of who is af­fec­ted by the plan­ned mea­su­res and what ob­li­ga­ti­ons qua­li­fied plat­form ope­ra­tors must ful­fill in the fu­ture.

Note: As the le­gis­la­tive pro­cess has not yet been com­ple­ted, chan­ges may still oc­cur.

Platforms as defined by the PStTG-Draft

The scope of ap­pli­ca­tion of the PStTG is in­ten­ded to co­ver di­gi­tal plat­forms that enable pro­vi­ders and users to make con­tact via the in­ter­net using soft­ware and to con­clude le­gal tran­sac­tions on the plat­form re­la­ting to so-cal­led re­le­vant ac­tivi­ties.

Ac­cor­ding to the ex­planatory me­mo­ran­dum publis­hed by the Ger­man go­vern­ment, plat­form ope­ra­tors and pro­vi­ders must be dif­fe­rent le­gal en­ti­ties. The on­line store of a com­pany that ex­clu­si­vely sells self-pro­du­ced goods does not fall in the scope of ap­pli­ca­tion. There is also no ob­li­ga­tion to re­gis­ter if an ope­ra­tor of an on­line store of­fers ser­vices that he has ob­tai­ned from third par­ties, but are not re­gis­te­red as suppliers there.

Ex­am­ple: An elec­tri­cal goods ma­nu­fac­turer sells elec­tro­nic de­vices via an on­line store. He ob­ta­ins these de­vices ex­clu­si­vely from a who­le­sa­ler who does not ap­pear in the on­line store as a sel­ler of the goods. In this case, the on­line store is not a plat­form wi­thin the mea­ning of the PStTG-Draft.

This is to be dis­tin­gu­is­hed from ca­ses in which con­tact bet­ween pro­vi­ders and users is only in­di­rect, by the plat­form ope­ra­tor ac­qui­ring ser­vices from pro­vi­ders in or­der to pro­vide them to users in its own name.

Ex­am­ple: Re­stau­rant ope­ra­tor R is re­gis­te­red as a pro­vi­der on B's plat­form and of­fers his me­als there. When a user N or­ders a meal, B purcha­ses it from R and re­sells it to N in his own name. Since R is re­gis­te­red as a pro­vi­der, B's sys­tem is a plat­form. The PStTG-Draft spe­ci­fies ex­clu­sion cri­te­ria which, if met, would mean that the sys­tem is not a plat­form wi­thin the mea­ning of the law.

The mere me­dia­tion of op­por­tu­nities to con­clude a tran­sac­tion, pure pay­ment ap­pli­ca­ti­ons and the ex­clu­sive ad­ver­ti­sing of ac­tivi­ties, on the other hand, are not sub­ject to the re­por­ting ob­li­ga­tion. Ac­cor­ding to the ex­planatory me­mo­ran­dum, bro­ke­rage por­tals, on­line pay­ment ser­vices, price com­pa­ri­son web­si­tes, etc. are the­re­fore not plat­forms wi­thin the mea­ning of the law.

Platform operators subject to reporting requirements

A plat­form ope­ra­tor as de­fi­ned by the PStTG-Draft is any le­gal en­tity that un­der­ta­kes to make avail­able a plat­form to a pro­vi­der for car­ry­ing out its ac­tivi­ties. In prin­ci­ple, this ap­plies to all le­gal en­ti­ties that ope­rate as plat­form pro­vi­ders, in­clu­ding for­eign le­gal en­ti­ties. Only in­di­vi­du­als are ex­clu­ded.

The ob­li­ga­ti­ons of the PStTG-Draft only af­fect qua­li­fied plat­form ope­ra­tors. These are ope­ra­tors that have a spe­ci­fic con­nec­tion to Ger­many or the EU. This con­nec­tion can exist eit­her on the ba­sis of a re­gis­te­red of­fice, a place of ef­fec­tive ma­nage­ment or a per­ma­nent es­ta­blish­ment in Ger­many or any other re­gis­tra­tion un­der do­mestic law. Ope­ra­tors are also con­side­red to be qua­li­fied plat­form ope­ra­tors if they are not do­mi­ci­led in any EU state but carry out their ac­tivi­ties in the EU. Howe­ver, an ex­cep­tion may ap­ply to these plat­form ope­ra­tors if they are do­mi­ci­led in a third coun­try that has com­mit­ted to an au­to­ma­tic ex­change of in­for­ma­tion with EU mem­ber sta­tes.

Qua­li­fied plat­form ope­ra­tors as well as plat­form ope­ra­tors with ne­xus to ano­ther EU mem­ber state are ge­ne­rally sub­ject to re­por­ting ob­li­ga­ti­ons in this EU mem­ber state.

Note: Plat­form ope­ra­tors who can prove that they make their plat­form avail­able ex­clu­si­vely to pro­vi­ders who are not re­qui­red to re­port (so-cal­led ex­empt plat­form ope­ra­tors) are also not re­qui­red to re­port.

Reportable activities

Only re­le­vant ac­tivi­ties are to be re­por­ta­ble. Ac­cor­ding to the draft law, these in­clude

• the tem­porary trans­fer of use and other rights of any kind to im­movable pro­perty,
• the pro­vi­sion of per­so­nal ser­vices,
• the sale of goods, and
• the tem­porary trans­fer of use and other rights of any kind to me­ans of trans­port.

The le­gis­la­tor en­vi­sa­ges a wide scope of ap­pli­ca­tion. For ex­am­ple, the na­ture and use of im­movable pro­perty and the du­ra­tion of the trans­fer are ir­re­le­vant. In prin­ci­ple, all ac­tivi­ties that are li­mited in time or re­la­ted to a spe­ci­fic task are co­vered as per­so­nal ser­vices, re­gard­less of whe­ther they are pro­vi­ded vir­tually or at a phy­si­cal lo­ca­tion.

Ano­ther pre­re­qui­site for the re­por­ting ob­li­ga­tion is that the ac­tivity is per­for­med in re­turn for a re­mu­nera­tion. This is to be un­der­stood as any form of re­mu­nera­tion re­cei­ved by a pro­vi­der for the re­le­vant ac­tivity. The re­mu­nera­tion in­clu­des any form and type, so that, for ex­am­ple, contri­bu­ti­ons in kind, cryp­to­cur­ren­cies, or the pro­vi­sion of (per­so­nal) data can also be con­side­red as re­mu­nera­tion.

Obligations for platform operators

Re­por­ting ob­li­ga­tion

Plat­form ope­ra­tors sub­ject to the re­por­ting ob­li­ga­tion must sub­mit tax-re­le­vant in­for­ma­tion to the BZSt for the first time for the ca­len­dar year 2023. Es­sen­ti­ally, they are re­qui­red to pro­vide in­for­ma­tion

• about them­sel­ves
• the plat­form they ope­rate, and
• the pro­vi­ders on their plat­form.

In ad­di­tion to ge­ne­ral in­for­ma­tion, the num­ber of re­le­vant ac­tivi­ties for which re­mu­nera­tion was paid or cre­di­ted and the to­tal re­mu­nera­tion paid or cre­di­ted must be re­por­ted for each quar­ter of the ca­len­dar year.

Note: The re­port must be sub­mit­ted to the BZSt in elec­tro­nic form ac­cor­ding to the of­fi­ci­ally pre­scri­bed data set no la­ter than Ja­nu­ary 31 of the year fol­lo­wing the ca­len­dar year in which the pro­vi­der was iden­ti­fied as a re­por­ta­ble pro­vi­der. The dead­line for the first-time re­por­ting ob­li­ga­tion is the­re­fore Ja­nu­ary 31, 2024.

Com­pli­ance and other ob­li­ga­ti­ons

In ad­di­tion to re­por­ting re­le­vant ac­tivi­ties, re­por­ting plat­form ope­ra­tors par­ti­cu­larly must ful­fill the fol­lo­wing ob­li­ga­ti­ons ac­cor­ding to the PStTG-Draft.

Com­pli­ance ob­li­ga­ti­ons:

• Ob­li­ga­tion to col­lect re­por­ta­ble in­for­ma­tion and check its plau­si­bi­lity.
• Iden­ti­fi­ca­tion of ex­empt pro­vi­ders, i.e. pro­vi­ders for which there is no re­por­ting ob­li­ga­tion.

The dead­line for ful­fil­ling com­pli­ance ob­li­ga­ti­ons is to ex­pire on Ja­nu­ary 31 of the re­por­ting pe­riod or, for exis­ting pro­vi­ders, on De­cem­ber 31 of the se­cond re­por­ting pe­riod.

Other ob­li­ga­ti­ons:

• Ob­li­ga­tion to in­form pro­vi­ders about the no­ti­fi­ca­tion.
• En­force­ment of coope­ra­tion ob­li­ga­ti­ons to pro­vi­ders.
• Re­cord­kee­ping ob­li­ga­ti­ons.

Note: Non-EU-ba­sed plat­form ope­ra­tors are also sub­ject to a one-time ob­li­ga­tion to re­gis­ter with a com­pe­tent aut­ho­rity in a mem­ber state. Ac­cor­ding to the ex­planatory me­mo­ran­dum publis­hed by the Ger­man go­vern­ment, re­gis­tra­ti­ons must be car­ried out im­me­dia­tely upon entry into force of the PStTG or upon sub­se­quent qua­li­fi­ca­tion as a re­por­ting plat­form ope­ra­tor af­ter the re­le­vant re­qui­re­ments have been met.

Fines for violations of obligations

If re­por­ting plat­form ope­ra­tors fail to com­ply with their ob­li­ga­ti­ons, fi­nes of bet­ween EUR 5,000 and EUR 50,000 may be im­po­sed, de­pen­ding on the na­ture of the vio­la­tion. As a last re­sort, the BZSt will also be able to pro­hi­bit the ope­ra­tion of the plat­form and or­der its blo­cking.