The EITI standard requires that all the important payment flows of a country’s extractive sector are considered. During various meetings, the MSG discussed which sectors of the natural resources extraction industry should be included in the fifth DEITI report. The following individual sectors were addressed:
- Crude oil and natural gas
- Potash and salts
- Quarried natural resources
The EITI standard does not provide direct guidance for the process of selecting companies to be included in reporting – on the contrary, the selection of the companies should be oriented on the objective of the EITI initiative (analogue with the selection of the sectors) to make the revenues of a country’s extractive industry transparent and to disclose all the significant payment flows between companies and government agencies in this respect. Pursuant to EITI requirement 4.1b), payments and revenues are deemed to be significant if their non-consideration or misrepresentation could significantly affect the completeness of the EITI report.
With regard to the selection of companies, the MSG has resolved to comply with the requirements of EU Accounting Directive 2013/34 of June 26, 2013. The stated objectives of the EITI initiative and of the payment flows specified by the EITI are also largely congruent with the provisions of the EU Accounting Directive. Recital 44 and 45 of the Directive even explicitly state that:
- the regulations are intended to help governments in the implementation of the EITI principles and criteria and
- that payments should be recorded which are comparable to those of the EITI.
The EU Directive was implemented into German law by the BilRUG. Pursuant to §§341q et seq. HGB, companies in the extractive industry must submit (consolidated) payment reports under certain conditions (registered office, legal form, size, activity) (cf. the explanations given in Public reports).
During several meetings, the MSG agreed to carry out the further content-related development formulation of the D-EITI process in accordance with the new provisions of §§ 341 q et seq. HGB. This particularly affects:
- the criteria for the identification of the companies that are eligible for reporting,
- the relevant period of reporting
- and the establishment of materiality thresholds for the payment flows which are to be reported.
The link to the statutory provisions of the HGB is intended to create the prerequisites for the widest possible participation of the companies; possible double burdens (for the participating companies), which could result from differences between the legal requirements for the (consolidated group) payment report and the reporting requirements for the EITI should also be avoided (cf. also Public reports).
Pursuant to § 267(3) of the HGB, the criteria for “large” companies were therefore used as an initial basis for the identification of the companies. In this case, two of the following three criteria for classification as a “large” company must be fulfilled on at least two successive two successive closing dates:
- Balance sheet total of €20 million
- Sales of more than €40 million
- A yearly average of more than 250 employees
With regard to the question whether or not an “activity” exists in the extractive industry, reference was made to Regulation 1893/2006/EC of December 20, 2006, which regulates the details of the statistical classification of economic activities. Section B of Annex I of this Regulation is divided into sub-sections 05 to 08 as follows:
WZ 2008 Code
Economic sector (WZ) 2008 – description
(a. n. g. = not specified elsewhere)
ISIC Rev. 4
SECTION B – MINING AND QUARRYING
Hard coal mining
Hard coal mining
Extraction of crude oil and natural gas
Extraction of crude oil
Extraction of crude oil
Extraction of natural gas
Extraction of natural gas
Extraction of natural gas
Iron ore mining
Iron ore mining
Non-ferrous metal ore mining
Mining of uranium and thorium ores
Mining of uranium and thorium ores
Other non-ferrous metal ore mining
Quarried natural resources, other mining products
Quarrying of natural stone, gravels, sand, clay and china clay
Quarrying of natural and artificial stone, limestone, gypsum, chalk and slate
Extraction of gravel, sand, clay and china clay
Other mining; quarrying a.n.g.
Mining of chemical and fertiliser minerals
Extraction of salt
For the purpose of identifying possible companies, companies assigned to one of the sub-sections 05 to 08 are considered to be primarily “active” in the extractive industry. In addition to the statutory duty to draw up payment reports for “large” companies, there is also an obligation for parent companies to prepare group (consolidated) financial statements if at least one subsidiary is active in the extractive sector. The size of this “active” subsidiary is not relevant here (a “consolidated tax group infection”), so that even companies which are themselves not classified as being “large” can trigger a reporting obligation simply through being combined with a “large” parent company.
The approach to “consolidated tax group infection” was also addressed for the purpose of identifying extractive industry companies; and the number of such companies increased accordingly. As a result, the selection is made using a combination of size and activity criteria (cf. the explanations in Chapter 10.b.ii.).
In addition to the size of the companies and the economic classification, the MSG also used a substantial coverage of the sectors as a criterion for the selection of companies.
Depending on the natural resource in question, there are significant differences in the number of companies and active employees in the various sectors in Germany’s extractive industry. The coal mining and crude oil and gas production sectors are dominated by a few, large companies, for instance. The quarried natural resources sector, on the other hand, is characterised by a structural mix of few large suppliers and a high proportion of small and medium-sized enterprises. The vast majority of the companies in this sector are not subject to any legal obligation to draw up payment reports and cannot consequently be identified through the criteria intended for the identification of the companies for the EITI report (see also the explanations in Chapter 10.b.iii.).
Requirements 2.6, 4.5 and 6.2 of the EITI standard are related to government shareholdings in extractive companies.
In Germany, an extractive company with a majority state participation was identified – Südwestdeutsche Salzwerke AG. According to the 2020 annual report, the town of Heilbronn and the State of Baden-Württemberg together hold 93.11 % of the voting rights of this company (cf. Annual Report 2020, p. 132 and 133). The dividend paid in 2020 for the previous financial year amounted to €16,812,000.00, equivalent to €1.60 per share (see Annual Report 2020, p. 157). The share capital stands at €27 million and is divided into 10,507,500 individual shares.
The annual report for 2020 can be viewed here.
Virtually fiscal revenues, as queried under requirement 6.2 of the EITI standard, are not known.
In the MSG’s view, requirements 2.6, 4.5 and 6.2 of the EITI standard are sufficiently met by the above explanations.
In accordance with the EITI standard, payment flows from the extractive industry must be taken into account if they are regarded as significant for a complete presentation of the company payments and state revenues. The following payment flows are recorded within the framework of the fifth German EITI report (cf. also the explanations in Revenues generated).
Corporate tax is the main income tax of limited companies in Germany. It is not a specific tax for extractive industry companies, but is levied on all limited companies that are domiciled in Germany or are active in the country. The assessment basis for corporate tax is the taxable commercial income, which is derived from the annual net profit; any tax modifications that may apply are also considered. If an enterprise is also active in other sectors as well as in the extractive sector, there may be delimitation problems regarding the share of corporate tax attributable to the activities in the extractive sector since the corporate tax is calculated on the basis of the total taxable income (cf. also Revenues generated).
For this reason, corporate tax is classified as a non-project-related payment in the payment reports to be prepared under commercial law. Allocation of these payments to activities within and outside the extractive sector can be selectively carried out by companies if a proper and reliable coding (based on appropriate allocation criteria) is possible. This commercial practice is pursued for the purposes of EITI reporting.
Commercial enterprises in Germany are subject to trade tax. The trade tax assessment procedure has two stages. Trade tax is levied on the trade income. The municipalities in which the respective company has permanent establishments are entitled to the trade tax. A permanent establishment can also extend over several municipalities. Payment recipients for trade tax payments are the relevant individual municipalities, and not the Federal Government or the Federal States. This reflects the federal structure of the state in Germany (cf. also Revenues generated).
From an administrative point of view, the tax authorities determine (based on the assessment basis determined for corporate income tax) an amount for tax assessment taking into account the provisions of the Trade Tax Act. The trade tax assessment amount is 3.5% of the trade income for all companies nationwide. The tax administration sends the tax assessment amount to the respective local authority in which the company has its permanent establishment. If the company has several permanent establishments or if a permanent establishment extends over several municipalities, the tax administration also divides the tax assessment amount among the municipalities according to a legally determined distribution key. The statements made in this chapter for the tax administration apply accordingly to trade tax for these sections of the administrative procedure.
Building on the upstream administrative procedure at the level of the tax offices, the respective municipality determines the amount of trade tax to be assessed and paid by the company to the municipality by multiplying the tax assessment amount notified by the tax authorities by the municipality-specific tax factor. The tax factor is determined by the elected members of the municipal council. The assessment process, which is divided between two administrative units as described above, is followed by the collection process (the actual payment process) which takes place exclusively at the level of the municipalities.
For a better understanding of the payments of corporate tax or trade tax reported in the context of data collection, further information on the recording of tax payments in certain parent-subsidiary constellations or on special features of tax payments in the context of fiscal inter-company relationships are provided below. In the course of the evaluation of the data collection, it became apparent that both aspects are of particular relevance for the classification and assessment of the reported tax payments.
Particularities with regard to the recording of tax payments in certain parent-subsidiary constellations
Business partnerships such as the GmbH & Co. KG traditionally play a leading role in Germany’s small and medium-sized enterprises, in contrast to many other jurisdictions. They are subject to trade tax, but not to corporate tax. Corporate tax is first levied at shareholder level, but only if the shareholder is a limited company. In this respect, one special feature of the German tax law should be noted, according to which business partnerships are not themselves the subject of taxes in terms of income tax; the income generated by the company is subject to taxation at the level of the shareholders, together with the income they have earned from other sources.
In the subsidiary-partnership constellation of a parent limited company, consequences may arise for the recording of the tax payments (trade tax and corporate tax) within the framework of data collection for the EITI report; examples of such consequences are shown below. In each case, it is assumed that a company has voluntarily participated in the data collection for the EITI report if it is active in the extractive industry.
If both the parent limited company and the subsidiary business partnership are active in the extractive industry, all the relevant tax payments (trade tax of the subsidiary and the parent company as well as corporate tax at the parent company level) are recorded in the EITI report. If, on the other hand, the subsidiary or parent company is not active in the natural resources sector, either not all or too many tax payments to government agencies are recorded. If, for example, the parent limited company is active in the extractive industry, but the subsidiary-business partnership is not, the reported corporate tax payments of the parent company also include the financial results of the subsidiary. From the viewpoint of commercial law, it is possible (but not obligatory) to allocate corporate tax payments to activities both within the extractive sector and outside of it. If, on the other hand, the subsidiary-business partnership is active in the extractive industry, but the parent limited company is not, trade tax payments are only recorded for the subsidiary through the subsidiary’s (sole) participation in the data collection, but not, the corporate tax paid by the parent limited company (on a pro rata basis) for the financial results of the subsidiary.
This handling of corporate tax is due to the German tax system. The MSG has decided to pursue this legal, tax-related standpoint, also for EITI purposes.
Particularities with regard to recording the tax payments of consolidated tax groups
German tax law has specific special arrangements in the case of trade tax and corporate tax for corporate groups. Under certain conditions, a so-called “consolidated tax group” may exist. In constellations like this, the incorporated companies (subsidiary organisations), which are themselves limited companies do not usually pay tax. The payment of taxes levied on the financial result of all the companies incorporated in the consolidated tax group is carried out entirely and exclusively by the parent company. The parent company in turn pays taxes on its own income and on the income of its subsidiaries, which may not exclusively result from activities related to the extraction of natural resources.
For the purposes of the (consolidated group) payment report under German commercial law, the following differentiations are made at the level of the parent company:
- If the consolidated tax group is mainly active in the extractive industry pursuant to § 341r No. 1 HGB, reporting can be carried out for the total amount of the taxes paid by the parent company. There is no obligation to allocate the tax payments to activities within or outside the scope of § 341 r No. 1 HGB.
- If, on the other hand, the consolidated tax group is not mainly active in the extractive industry as set down in § 341 r No. 1 HGB, the tax payments made by the parent company may be allocated on a voluntary basis. Otherwise, details of the tax payments made by the parent company will be omitted.
The results of the collection of payments substantiate the major practical importance of consolidated tax groups in the taxation of groups of companies. In various cases concerning the companies participating in the reporting, details of the taxes paid by the parent company are consequently omitted (cf. the remarks on the payments made in Payment flows 2018).
The MSG has also decided to follow the commercial law perspective for EITI purposes regarding the recording of tax payments made by tax groups.
Mine site and extraction royalties are levied as a specific tax on extractive companies for free-to-mine natural resources, based on the German Federal Mining Act (BBergG) (§§ 30, 31 BBergG) (for further details see Revenues generated).
The MSG has decided to include mine site and extraction royalties in the EITI report as a payment flow.
Mine site and extraction royalties are the only taxes that are levied for the exploration and extraction of free-to-mine natural resources in Germany. However, lease payments may be paid to public authorities in connection with the extraction of natural resources that are not free-to-mine, particularly in the quarrying sector. This is the case when government agencies as landowners conclude private-law contracts with the extractive industry for the extraction of raw materials. Such contractual arrangements may include fixed payments or payments that depend on the quantity extracted, or a combination of both variants.
The recipients of the lease payments are the government agencies that have concluded the contractual arrangements with the company (e. g. towns and communities, forestry offices, as well as state property administration and moor management authorities).
The content and number of agreements are not centrally documented (cf. Revenues generated). In addition, the individual government agencies which have concluded lease contracts – unlike the individual tax offices in the case of corporate tax – cannot be centrally addressed via an organisational unit. This leads to particular difficulties in respect of quality assurance.
Just which government agencies – and how many of them – receive lease payments cannot be foreseen. This information can only be provided by the participating companies themselves within the framework of the data collection process.
Lease payments by companies to government agencies are therefore recorded as part of the data collection (no change here from the third German EITI report), but are not subject to separate quality assurance. The total amount of the lease payments, which are generally collected via the municipalities’ revenue offices, only plays a subordinate role in the 2020 reporting year when compared to the overall amount of the reported payments (this was also the case in the most recent D-EITI reports) and was at the same level as in the 2019 reporting year.
The payment flow corresponds to the legal regulation of the (consolidated) payment report in in § 341 r No. 3 g HGB. The payments notified generally include measures taken by companies for restoring nature on the one hand and payments to promote municipal investments and educational institutions or for the creation or maintenance of public infrastructure on the other. In a similar way to the previous D-EITI reports, the measures reported for the 2020 reporting year can be attributed exclusively to companies from the lignite mining sector, so it is not a cross-sector payment flow.
In the first two D-EITI reports, the content and the composition of the reported payments were analysed in more detail by the Independent Administrator at MSG’s request. The results were then presented to the MSG. The results show a high degree of heterogeneity of the recorded payments. This stems from the variety of measures taken in connection with the compensation of impacts from the respective companies involved in lignite mining. Information on the recipients of payments and the purpose of these can, in part, be found in the companies’ payment reports.
The EITI standard generally requires reporting at project levels (EITI Requirement 4.7). The MSG has decided to implement the content and scope of the project concept by the analogous application of legal regulation § 341 r No. 5 HGB. Payments to government agencies must therefore be detailed for each project if the reporting company has carried out more than one project during the reporting period. The concept of the project is concretised in § 341 r No. 5 HGB in the form of a summary of operational activities which form the foundation for payment obligations to a government agency and which are based on a contract, license, lease agreement, concession or a similar legal agreement or a series of operationally and geographically associated contracts, licences, lease agreements or concessions or associated agreements with a government agency which essentially provide for similar conditions.
As a rule, no project-related reporting is provided for “corporate tax” and “trade tax” payment flows, since these are flows that are based on a legal regulation and not on one of the legal agreements set down in § 341 r No. 5 HGB.
In the case of the “mine site and extraction royalties” payment flow, specifying the relevant approved/licensed site within the scope of the data report ensures the sufficient determinability of the project in question. In the case of lease payments and payments for infrastructure improvements, the data collection templates provide for a breakdown of payments between projects per government agency.
The commercial regulations for the preparation of (consolidated group) payment reports stipulate that the companies concerned must report payments of €100,000 and upwards made to individual government agencies per reporting year (cf. § 341 t(4) HGB). A government agency to which less than €100,000 has been paid during the reporting period does not have to be included.
The MSG has decided to adopt these rules also for the fifth D-EITI report. If payments made during reporting year 2020 amounted to less than €100,000 per government agency, the data collection templates require relevant proof of the existence of payments, but without mentioning any specific amounts.
With regard to trade tax payments, the information base was expanded compared to the previous D-EITI reports. In this fifth D-EITI report, the 20 municipalities that received the highest trade tax payments from participating companies for the reporting year 2020 are included in the quality assurance process.