Revenues generated
Companies, which extract natural resources in Germany, pay various fees, duties and taxes on their activities. A company that extracts free-to-mine natural resources in a Federal State pays specific mine site and extraction royalties to that Federal State as per the Federal Mining Act. Excluded from this are natural resources that are extracted on the basis of ‘old rights’ (see chapter 3.b.). In this case, however, the owners of the still-valid old production rights or the former mining rights may be entitled to payment of a so-called pro- duction interest (e.g. in the case of so-called old oil or natural gas contracts) by the companies. Regardless of the activity involved, all companies in the natural resources sector – and most other companies – are subject to trade and corporate tax.
Who is responsible for revenues collection?
Due to the federal structure of the Federal Republic of Germany, tax administration is split between the Federal Government and the Federal States. Depend- ing on the type of tax, it is levied by the financial authorities of the Federal Government, the Federal States or the local authorities. One exception to this rule is mine site and extraction royalties, which are levied by the mining authorities of the Federal States.
What payments are made by the extractive industry?
Corporation tax and solidarity surcharge
A company (which extracts natural resources) with the legal form of a limited company (in particular a limited liability company or public limited company) which has its head office or management in Germany is subject to unlimited corporate tax. Limited companies which do not have their head offices and management in Germany are subject to corporate tax on the income generated in Germany. In In Germany, corporate tax amounts to 15% of the taxable income. The revenue is shared by the Federal Government and the Federal States. Corporate tax is levied by the tax authorities of the Federal States. A solidarity surcharge set at 5.5% of the corporate tax determined is levied as a supple- mentary tax to corporate tax. This is payable to the Federal Government and it is collected by the tax
offices of the Federal States.
Minesite and extraction royalties
Companies and persons require a permit to prospect for ‘free-to-mine’ natural resources (§ 7 BBergG). Owners of this type of permit are required to pay an annual mine site royalty as per § 30 BBergG. Pursuant to § 30 (3) sentence 1 of the BBergG generally amounts to EUR5 per square kilometre of a mine site in the first year after the permit has been granted; the amount increases by EUR5 per year to a maximum of EUR25 per year, whereby the legislation of individual States may provide for differing royalty amounts and even exemptions under certain conditions (see § 32 (2) BBergG and the table on page 50 – 58). The expenses incurred for prospecting are set off against the mine site royalties. Mine site royalties must be paid to the
Federal State in which the licensed mine site is located.
If natural resources are found, a permit is required for their extraction. However, extraction is only possible if the necessary operating plan permit and any other permits such as water rights permits have already been granted. If the extracted natural resources can be used for financial gain, the permit holder must pay extraction royalties for the extracted free-to-mine natural resources as per § 31 BBergG. The standard rate for extraction royalties is 10% of the market value of the natural resources in question (§ 31 (2) sentence 1 BBergG). Here too, individual Federal States may stipulate different regulations in their legislation for the calculation of mine site and extraction royalties under certain conditions (see § 32 BBergG and the
table on page 50 – 58).
Owners of old rights are exempt from extraction royalties in accordance with § 151 (2) no. 2 BBergG (see chapter 3). In practice, this primarily affects lignite and (until the end of 2018) hard coal extraction and old grants for granite, coloured earths, salt and brine. Even before BBergG 1982 came into force, the opera- tors of these sites had received unlimited-term, irrev- ocable extraction rights free from royalties or had acquired old rights in the “new” Federal States in eastern Germany in the course of privatising proprie- tary mining rights. For this reason, they are not recorded in the State ordinances on extraction royal- ties. This excludes Saxony and Saxony-Anhalt. There special aspects required new licenses to be applied for in accordance with the BBergG within the frame-
work of the Unification Treaty and these are always subject to royalties. Therefore, exemptions were created in the Extraction Royalties Ordinances of both States (Parliamentary advisory service of the State parliament of Brandenburg 2008).27
Mine site and extraction royalties only apply to free-to- mine natural resources. While mine site royalties are appropriated into the respective Federal State’s budget, the revenue from extraction royalties is used for inter- state financial equalisation. Mine site and extraction royalties are levied by the mining authorities of the
Federal States.
Trade tax
Trade tax is levied on real estate or property. Assess- ment of trade tax involves several stages: The munic- ipalities due to receive the trade tax are routinely responsible for levying the tax. It is levied by the municipality in which the enterprise is located. The purpose of the trade tax is to tax the objective earning potential of a commercial enterprise. However, unlike corporate tax, trade tax is not linked to economic performance. Additions and deductions correct the income of the commercial enterprise (§§ 8 and 9 GewStG (Trade tax)). To calculate trade tax, the responsible tax office determines the taxable amount, which is 3.5% of the objective earning potential. For all the companies in its area of jurisdiction, the responsible municipality sets a uniform tax factor, which must be at least 200% (§ 16 (4) sentence 2 GewStG) and calculates the trade tax based on the taxable amount determined by the tax office and the individual tax factor.
A company (which extracts natural resources) with the legal form of a partnership or limited company is subject to trade tax. If operating facilities are located in an area belonging to several municipalities or are operated in a number of municipalities, the tax assessment basis (assessment basis for trade tax) is distributed among these individual municipalities (so-called ‘reallocation’). As a general rule, the wages in the individual operating facilities are used as a yardstick for the calculations. This means that each municipality involved can levy its share of the trade tax.
An overview of the trade tax assessment rates (2020) of the municipalities in Germany is available via the Federal Office of Statistics28 Commercial taxation is the main source of tax for municipalities, followed by land tax. The Federal Government and the States’ share in the revenues of the trade tax through an allo- cation and redistribution mechanism for trade tax. The remainder of the trade tax for the municipalities flows into their general budgets, thus helping to finance the local infrastructure and to provide education and social services among other things.
Lease payments
In Germany, the extraction of natural resources is governed by the BBergG, if the resources concerned are free-to-mine or privately-owned natural resources. As per § 3 (3) BBergG , free-to-mine natural resources include metals, salts and fossil fuels such as hydro- carbons, lignite and hard coal. The ownership of a property does not extend to free-to-mine natural resources, so in this respect the property rights of the landowner are limited. In contrast, privately owned natural resources are the property of the landowner. The landowner may carry out prospecting and extract the resources if found, without the need for any addi- tional special legal title in addition to the operating permit and other required public-law permits. Its inclusion in the scope of validity of the BBergG aims to make their extraction subject to a uniform legal framework throughout Germany and (in particular) to uniformly regulate natural resource extraction in underground mining and ensure uniformity in the management of mine inspection authorities.
In addition to privately owned natural resources, there are the so-called ‘landowner’s natural resources’. These are bulk raw materials, such as gravel and sands, which are predominantly used as building materials and are extracted through opencast mining. Like the privately owned natural resources, these are also the property of the landowner, but they are neither subject to mining law nor to mining inspection.
A company does not have to own the land to extract privately owned natural resources and landowners’ natural resources. If the owner of the land simply makes it available to the company on the basis of a legal private contract (e.g. through a lease agreement) – and this is often the case – that alone suffices. Such contractual arrangements may include fixed payments or payments that depend on the quantity extracted,or a combination of both variants. On the Federal State side, official bodies including local authorities (e.g. counties or municipalities) and forestry offices may have the roles of landowners and landlords. The revenues from the leaseholds are therefore transferred to municipal budgets or Federal State budgets, thus
making it possible to finance statutory tasks (et alia).
Excise duties
Energy and electricity taxes are particularly relevant for companies in the natural resources sector, within the framework of excise duties. Like the other excise duties, energy and electricity taxes are explicitly excluded from the reporting obligation within the framework of the legal commercial (corporation) payment report, as per the EU Accounting Directive and its implementation in § 341r, no. 3 b) HGB
(German Commercial Code).
The Energy and Electricity Tax Act is based on the harmonised provisions of the EU Energy Tax Directive 2003/96/EC of 27 October 2003. On 1 April 1999, the electricity tax was introduced in Germany within the framework of the law covering entry into the ecologi- cal tax reform, and the tax rates of the energy tax (at that time still called mineral oil tax) were gradually increased. This created incentives to reduce energy consumption and to develop resource-conserving products and production processes.
The Electricity Tax Act and the Electricity Tax Imple- menting Ordinance constitute the legal basis for levying electricity tax. The Federal Government is entitled to electricity tax revenues, which amounted to EUR6.9 billion in 2019. The revenue from the elec- tricity tax and the higher taxation of fuels and heating materials obtained in connection with the ecological tax reform contribute to keeping social insurance contributions at a manageable level. Administration and collection tasks are carried out by customs
administration.
The electricity tax is levied for consumption, but it is usually levied as an indirect tax on the supplier and passed on to consumers via the electricity price for practical reasons. This means that companies in the extractive sector must also pay electricity tax. The statutory tax rate is EUR20.50 per megawatt hour. Reduced tax rates can be considered for various pur- poses, e.g. railway electricity, whereas the production industry can particularly benefit from tax relief (see chapter 6).
The energy tax is an excise duty on energy products. It is governed by Federal legislation, and levied to tax the use of energy products as fuels or heating fuels within the German tax territory. The Energy Tax Act defines energy products as being (in particular), petrol, diesel fuel, light and heavy fuel oil, liquefied petroleum gas, natural gas, natural gas and coal as well as bio- diesel, vegetable oil and energy products of a similar nature that are used as motor or heating fuels. The amount of the tax varies according to the energy product and its intended use and is regulated in the Energy Tax Act. Tax concessions are standardised in the Energy Tax Act for certain energy products and intended uses (see chapter 6). Like the electricity tax, energy tax is levied by the customs administration, and the revenues flow to the Federal Government.
In 2019, energy tax revenues amounted to approx. EUR41.2 billion. The revenue from energy and elec- tricity taxes is the third-largest source of income for the Federal Government, after income tax and VAT.
The sheer financial volume of electricity and energy tax payments by companies in the natural resources extractive sector, and the financial scale of electricity and energy tax concessions (see chapter 6) cannot be feasibly presented without a disproportionate amount of bureaucratic effort. No statistics showing the electricity and energy tax payments for individual econom- ic sectors exist as yet.29
The financial scale can be estimated on the basis of data from the Federal Office of Statistics concerning the use of energy in manufacturing companies and information in the EU’s state aid transparency data- base (see chapter 6d).
1https://www.destatis.de/DE/Themen/Staat/Steuern/Steuereinnahmen/Publikationen/Downloads-Realsteuern/aenderung-realsteuerhebe- satz-5712301207004.html, retrieved December 16, 2020
2 In the MSG, there was no consensus on the extent to which energy and electricity tax payments were among the most important payment flows. Therefore, they are not part of the payment flows reported by companies.
