German Legacy WHT Reclaims and Securities Funds: A Deeper Dive into the Landmark Decisions of 13 March 2024

On 13 March 2024, the German Federal Fiscal Court issued two landmark decisions, I R 1/20 and I R 2/20, concerning the discriminatory taxation of foreign securities investment funds under the German Investment Tax Act of 2004, which was in force until 31 December 2017. These rulings conclusively establish that foreign securities investment funds that suffered withholding tax (WHT) on their German dividend income during the period from 1 January 2004 to 31 December 2017 are entitled to a full refund of such German WHT. The decisions at hand have significant financial implications, both for the international fund industry and for the German national budget, which must allocate resources to cover an estimated EUR 7.5 billion in tax refunds. For foreign securities investment funds, the rulings open the door to enforcing legacy refund claims for WHT suffered between 2004 and the end of 2017.