For information about taxes and levies to be paid in the Federal Republic of Germany and the U.S., please refer to the provisions of the German-American Convention for the Avoidance of Double Taxation with Respect to Taxes on Estates, Inheritances, and Gifts of September 22, 1982 (in particular Section IV, Article 11) and the Protocol Amending the Convention, dated December 1998, regarding the marital deduction (double the amount of the individual deduction). In the U.S., this convention applies exclusively to federal taxes and levies (federal estate and gift tax), but not to taxes and levies imposed by the individual U.S. states (state tax). Consultation with a knowledgeable tax expert is advisable and appropriate.

The Federal Republic of Germany and the United States of America, Desiring to avoid double taxation with respect to taxes on estates, inheritances, and gifts, Have agreed as follows:

Article 1: Scope

This Convention shall apply to a) Estates of deceased persons whose domicile at their death was in one or both of the Contracting States, and b) Gifts of donors whose domicile at the making of a gift was in one or both of the Contracting States.

Article 2: Areas Covered

1. The existing taxes to which this Convention shall apply are: a) In the case of the United States of America: The Federal estate tax and the Federal gift tax, including the tax on generation-skipping transfers: and b) In the case of the Federal Republic of Germany: the inheritance and gift tax (Erbschaftsteuer und Schenkungsteuer).

2. This Convention shall also apply to any similar taxes on estates, inheritances, and gifts which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes.

Article 3: General Definitions

1. In this Convention:

a) the term “United States of America” when used in a geographical sense means the states thereof and the District of Columbia. Such term also includes the territorial sea thereof and the seabed and subsoil of the submarine areas adjacent to the coast thereof, but beyond the territorial sea over which the United States of America exercises sovereign rights, in accordance with international law, for the purpose of exploration for and exploitation of the natural resources of such areas.

b) the term “Federal Republic of Germany” when used in a geographical sense means the territory in which the Basic Law for the Federal Republic of Germany is in force as well as any area adjacent to the territorial waters of the Federal Republic of Germany designated, in accordance with international law relating to the rights which the Federal Republic of Germany may exercise with respect to the seabed and subsoil and their natural resources, as domestic area for tax purposes.

c) the term “enterprise” means an industrial or commercial undertaking.

d) the term “enterprise of a Contracting State” means an enterprise carried on by a person who is domiciled in a Contracting State.

e) the term “competent authority” means: i) in the case of the United States of America, the Secretary of the Treasury or his delegate, and ii) in the case of the Federal Republic of Germany, the Federal Minister of Finance.

2. As regards the application of the Convention by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the law of that Contracting State concerning the taxes to which the Convention applies.

Article 4: Fiscal Domicile

1. For the purposes of this Convention, an individual has a domicile a) in the United States of America, if he is a resident or citizen thereof; b) in the Federal Republic of Germany, if he has his domicile (Wohnsitz) or habitual abode (gewöhnlicher Aufenthalt) therein or if he is deemed for other reasons to be subject to unlimited tax liability for the purposes of the German inheritance and gift tax.

2. Where by reason of the provisions of paragraph 1 an individual was domiciled in both Contracting States, then, subject to the provisions of paragraph 3, this case shall be determined in accordance with the following rules:

a) he shall be deemed to have been domiciled in the Contracting State in which he had a permanent home available to him. If he had a permanent home available to him in both Contracting States, or in neither Contracting State, the domicile shall be deemed to be in the Contracting State with which his personal and economic relations were closest (center of vital interests);

b) if the Contracting State in which he had his center of vital interests cannot be determined, the domicile shall be deemed to be in the Contracting State in which he had an habitual abode;

c) if he had an habitual abode in both Contracting States or in neither of them, the domicile shall be deemed to be in the Contracting State of which he was a citizen;

d) if he was a citizen of both Contracting States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.

3. Where an individual, at his death or at the making of a gift, was a) a citizen of one Contracting State, and not also a citizen of the other Contracting State, and b) by reason of the provisions of paragraph 1 domiciled in both Contracting States, and c) by reason of the provisions of paragraph 1 domiciled in the other Contracting State for not more than ten years, then the domicile of that individual and of the members of his family forming part of his household and fulfilling the same requirements shall be deemed, notwithstanding the provisions of paragraph 2, to be in the Contracting State of which they were citizens.

4. An individual who, at his death or at the making of a gift, was a resident of a possession of the United States of America and who became a citizen of the United States of America solely by reason of a) his being a citizen of a possession, or b) birth or residence within a possession, shall be considered as having been neither domiciled in nor a citizen of the United States of America at that time for purposes of this Convention.

5. For the purposes of this Convention the question whether a person other than an individual was domiciled in a Contracting State shall be determined according to the law of that State. Where such person is domiciled in both Contracting States, the competent authorities of the Contracting States shall settle the case by mutual agreement.

Article 5: Immovable Property

1. Immovable property which forms part of the estate of or of a gift made by a person domiciled in a Contracting State and which is situated in the other Contracting State may be taxed in that other State.

2. The term “immovable property” shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property, and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources, and other natural resources; ships, boats, and aircraft shall not be regarded as immovable property.

3. The provisions of paragraphs 1 and 2 shall also apply to immovable property of an enterprise and to immovable property used for the performance of independent personal services.

Article 6: Business Property of a Permanent Establishment and Assets Pertaining to a Fixed Base Used for the Performance of Independent Personal Services

1. Except for assets referred to in Articles 5 and 7, assets of an enterprise which form part of the estate of or a gift made by a person domiciled in a Contracting State and forming part of the business property of a permanent establishment situated in the other Contracting State may be taxed in that other State.

2. a) The term “permanent establishment” means a fixed place of business through which the business of an enterprise of a Contracting State is wholly or partly carried on.

b) A permanent establishment shall include especially: a place of management; a branch; an office; a store or other sales outlet; a factory; a workshop; a mine, quarry, or other place of extraction of natural resources; a building site or construction or assembly project which exists for more than twelve months.

c) Notwithstanding subparagraph a) of this paragraph, a permanent establishment shall be deemed not to include one or more of the following activities: the use of facilities for the purposes of storage, display, or delivery of goods or merchandise belonging to the enterprise; the maintenance of a stock of goods or merchandise belonging to the enterprise for the purpose of storage, display, or delivery; the maintenance of a stock of goods or merchandise belonging to the enterprise for the purpose of processing by another enterprise; the maintenance of a fixed place of business for the purpose of purchasing goods or merchandise, or collecting information, for the enterprise; the maintenance of a fixed place of business for the purpose of advertising, for the supply of information, for scientific research, or for similar activities, if they have a preparatory or auxiliary character, for the enterprise.

d) Even if an enterprise of a Contracting State does not have a permanent establishment in the other State under subparagraphs a) to c) of this paragraph, nevertheless it shall be deemed to have a permanent establishment in the latter State if it is engaged in trade or business in that State through an agent who has an authority to conclude contracts in the name of the enterprise and regularly exercises that authority in that State, unless the exercise of authority is limited to the purchase of goods or merchandise for the account of the enterprise.

e) An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other State merely because it is engaged in trade or business in that other State through a broker, general commission agent, or any other agent of an independent status, where such person is acting in the ordinary course of business.

f) The fact that a resident or a corporation of one of the Contracting States controls, is controlled by, or is under common control with i) a corporation of the other State or ii) a corporation which is engaged in trade or business in that other State (whether through a permanent establishment or otherwise) shall not be taken into account in determining whether such resident or corporation has a permanent establishment in that other State.

3. Except for assets referred to in Article 5, assets which form part of the estate of or of a gift made by a person domiciled in a Contracting State and pertaining to a fixed base situated in the other Contracting State used for the performance of independent personal services may be taxed in that other State.

Article 7: Ships and Aircraft

Ships and aircraft operated in international traffic and belonging to an enterprise which form part of the estate of or of a gift made by a person domiciled in a Contracting State, and movable property pertaining to the operation of such ships and aircraft, may be taxed only in that State.

Article 8: Interests in Partnerships

An interest in a partnership which forms part of the estate of or of a gift made by a person domiciled in a Contracting State, which partnership owns property described in Article 5 or 6, may be taxed by the State in which such property is situated, but only to the extent that the value of such interest is attributable to such property.

Article 9: Property Not Expressly Mentioned

Property which forms part of the estate of or of a gift made by a person domiciled in a Contracting State, wherever situated, and not dealt with in Article 5, 6, 7, or 8 shall, subject to paragraph 1 of Article 11, be taxable only in that State.

Article 10: Deductions and Exemptions

1. In the case of property which forms part of an estate of or of a gift subject to taxation by a Contracting State solely in accordance with Article 5, 6, or 8, debts shall be allowed as reductions of, or deductions from, the value of such property in an amount no less than:

a) in the case of property referred to in Article 5, debts incurred for purposes of the acquisition, repair, or upkeep of that property;

b) in the case of property referred to in Article 6, debts incurred in connection with the operation of the permanent establishment or fixed base; and

c) in the case of an interest in a partnership referred to in Article 8, debts to which subparagraphs a) or b) of this paragraph would apply if the property owned by a partnership referred to in that Article were owned directly by the decedent or donor.

2. Property transferred to or for the use of a corporation or organization of a Contracting State organized and operated exclusively for religious, charitable, scientific, educational, or public purposes, or to a public body of a Contracting State to be used for such purposes, shall be exempt from tax by the other Contracting State, if and to the extent that such transfer of property to such corporation, organization or public body a) is exempt from tax in the first-mentioned Contracting State and b) would be exempt from tax in the other Contracting State if it were made to a similar corporation, organization, or public body of that other State. The competent authorities of the Contracting States shall by mutual agreement settle the application of this provision.

3. Pensions, annuities, and other amounts payable by a Contracting State, a state, a Land, or their political subdivisions, or out of a public fund organized under the public laws thereof, or under a plan maintained by a person resident in that State a) under the Social Security laws of that State, or b) as consideration for services rendered, or c) as compensation for injury or damage sustained shall be exempt from tax by the other Contracting State, to the extent that such pension, annuity, or other amount would be exempt from tax in the first-mentioned Contracting State if the decedent were a domiciliary thereof. The amounts so exempted may, however, be offset against the “Versorgungsfreibetrag” according to the provisions of the German inheritance and gift tax.

4. Property (other than community property) which passes to the spouse from a decedent or donor who was domiciled in or a citizen of a Contracting State, and which may be taxed by the other Contracting State solely in accordance with Article 5, 6, or 8 shall, for the purpose of determining the tax of that other State, be included in the taxable base only to the extent its value (after taking into account any applicable deductions) exceeds 50 per cent of the value of all property included in the taxable base which may be taxed by that other State. However, the foregoing sentence shall not result in:

a) an exclusion from the taxable base in the Federal Republic of Germany of an amount in excess of the general marital deduction (Freibetrag des Ehegatten) granted with respect to transfers to spouses subject to unlimited tax liability under the German inheritance and gift tax;

b) a reduction of the tax due in the United States of America below the tax that would be due by applying to the taxable base determined under that sentence the rates applicable to a person domiciled in the United States of America.

The provisions of this paragraph shall not apply to a citizen of the United States of America domiciled in the Federal Republic of Germany or a former citizen or long-term resident of the United States of America referred to in subparagraph a) of paragraph 1 of Article 11.

5. In determining the estate tax imposed by the United States of America, the estate of a decedent (other than a citizen of the United States of America) who was domiciled in the Federal Republic of Germany at the time of the decedent's death shall be allowed a unified credit equal to the greater of:

a) the amount that bears the same ratio to the credit allowed to the estate of a citizen of the United States of America under the law of the United States of America as the value of the part of the decedent's gross estate that at the time of the decedent's death is situated in the United States of America bears to the value of the decedent's entire gross estate wherever situated; or

b) the unified credit allowed to the estate of a nonresident not a citizen of the United States of America under the law of the United States of America.

The amount of any unified credit otherwise allowable under this paragraph shall be reduced by the amount of any credit previously allowed with respect to any gift made by the decedent. For purposes of subparagraph a), the part of the decedent's gross estate that is situated in the United States of America shall not exceed the part of the decedent's gross estate that may be taxed by the United States of America in accordance with this Convention. A credit otherwise allowable under subparagraph a) shall be allowed only if all information necessary for the verification and computation of the credit is provided.

6. In determining the estate tax imposed by the United States of America, the value of the decedent's taxable estate shall be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property that passes to the decedent's surviving spouse (within the meaning of the law of the United States of America) and that would qualify for the estate tax marital deduction under the law of the United States of America if the surviving spouse were a citizen of the United States of America and all applicable elections were properly made (hereinafter referred to as “qualifying property”). The decedent's estate shall be entitled to such marital deduction provided that:

a) at the time of the decedent's death, the decedent was domiciled in either the Federal Republic of Germany or the United States of America;

b) the decedent's surviving spouse was at the time of the decedent’s death domiciled in either the Federal Republic of Germany or the United States of America;

c) if both the decedent and the decedent's surviving spouse were domiciled in the United States of America at the time of the decedent's death, one or both was a citizen of the Federal Republic of Germany; and d) the executor of the decedent's estate elects the benefits of this paragraph and irrevocably waives the benefits of any other estate tax marital deduction that would be allowed under the law of the United States of America on a United States estate tax return filed for the decedent's estate by the date on which a qualified domestic trust election could be made under the law of the United States of America.

The marital deduction allowed under this paragraph shall be equal to the lesser of the value of the qualifying property or the applicable exclusion amount (within the meaning of the law of the United States of America, determined without regard to any gift previously made by the decedent).

Article 11: Credits

1. The provisions of this Convention shall not preclude

a) the United States of America from taxing in accordance with its law the estate of a decedent or the gift of a donor who, at his death or at the making of the gift, was: i) a citizen of the United States of America, ii) domiciled (within the meaning of Article 4) in the United States of America, or iii) a former citizen or long-term resident whose loss of such status had as one of its principal purposes the avoidance of tax (as defined under the laws of the United States of America), but only for a period of ten years following such loss;

b) the Federal Republic of Germany from taxing in accordance with its law an heir, a donee, or another beneficiary who was domiciled (within the meaning of Article 4) in the Federal Republic of Germany at the time of the death of the decedent or the making of the gift.The preceding sentence shall not, however, apply to paragraphs 2, 3 and 4 of Article 10, paragraphs 2, 3, 4 and 5 of this Article, and Article 13; or paragraphs 5 or 6 of Article 10 as applied to the estates of persons other than former citizens and long-term residents referred to in the preceding sentence.

2. Where the United States of America imposes tax by reason of the decedent's or the donor's domicile therein or citizenship thereof, double taxation shall be avoided in the following manner:

a) where the Federal Republic of Germany imposes tax with respect to property in accordance with Article 5, 6, or 8, the United States of America shall credit against the tax calculated according to its law with respect to such property an amount equal to the tax paid to the Federal Republic of Germany with respect to such property.

b) in addition to any credit allowable under subparagraphs a) of this paragraph, if the decedent or donor was a citizen of the United States of America and was domiciled in the Federal Republic of Germany at his death or at the making of a gift, then the United States of America shall allow a credit against the tax calculated according to its law with respect to property other than property which the United States of America may tax in accordance with Article 5, 6, or 8, an amount equal to the tax paid to the Federal Republic of Germany with respect to such property.

3. Where the Federal Republic of Germany imposes tax by reason of the domicile therein of the decedent, donor, heir, donee, or other beneficiary, double taxation shall be avoided in the following manner:

a) where the United States of America imposes tax with respect to property in accordance with Article 5, 6, or 8, the Federal Republic of Germany shall credit against the tax calculated according to its law with respect to such property an amount equal to the tax paid to the United States of America with respect to such property,

b) in addition to any credit allowable under subparagraph a) of this paragraph, if the decedent or donor was domiciled in the United States of America and the heir, donee, or other beneficiary was domiciled in the Federal Republic of Germany at the time of the death of the decedent or the making of the gift, then the Federal Republic of Germany shall allow a credit against the tax calculated according to its law with respect to property other than property which the Federal Republic of Germany may tax in accordance with Article 5, 6, or 8, an amount equal to the tax paid to the United States of America with respect to such property.

4. The credits allowed by the Federal Republic of Germany according to the provisions of paragraph 3 shall include taxes levied by political subdivisions of the United States of America. Where a credit is not allowable for such taxes according to the provisions of paragraph 3, the competent authorities may consult for the purpose of avoiding double taxation pursuant to Article 13.

5. In order to avoid double taxation, each Contracting State shall, in allowing credits under paragraphs, 2, 3, and 4, take into account in an appropriate way: a) any tax imposed by the other Contracting State upon a prior gift of property made by the decedent, if such property is included in the estate subject to taxation by the first- mentioned State; b) any credit allowed by the other Contracting State for estate or gift taxes paid upon prior taxable events.

Difficulties and doubts arising in the application of this provision shall be resolved by the competent authorities under Article 13.

6. Any credits allowed under this Article shall not exceed the part of the tax of a Contracting State, as computed before the credit is given, which is attributable to the property in respect of which a credit is allowable under this Article.

7. Any claim for credit or for refund of tax founded on the provisions of this Article may be made until one year after the final determination (administrative or judicial) and payment of tax for which any credit under this Article is claimed, provided that the determination and payment are made within ten years of the date of death of the decedent or of the date of the making of the gift by the donor. The competent authorities may by mutual agreement extend the ten-year time limit if circumstances beyond the control of the taxpayer prevent the determination within such period of the taxes which are the subject of the claim for credit or for refund. Any refund based solely on the provisions of this Convention shall be made without payment of interest on the amount so refunded.

Article 12: Estates and Trusts

1. The provisions of this Convention shall not preclude either Contracting State from applying its rules governing the recognition of a taxable event, with respect to transfers of property to and from an estate or trust.

2. Where differences in the laws of the Contracting States give rise to taxation at different times of transfers of property to and from an estate or trust, the competent authorities may discuss the case under Article 13 with a view to avoiding hardship, provided that the difference in timing of taxation does not exceed five years.

3. In a case where a transfer of property to an estate or trust results in no taxable transfer at such time under the German inheritance and gift tax, the beneficiary of the estate or trust may elect within five years after such transfer to be subject to all German taxation (including income taxation) as if a taxable transfer had occurred to him at the time of such transfer.

Article 13: Mutual Agreement Procedure

1. Any person who considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with this Convention may, notwithstanding the remedies provided by the laws of those Contracting States, present his case to the competent authorities of either Contracting State. Such presentation must be made within one year after a claim for exemption, credit, or refund under this Convention has been finally settled or rejected.

2. The competent authority shall endeavor, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Convention.

3. The competent authorities of the Contracting States shall endeavor to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. They may also consult together for the elimination of double taxation in cases not provided for in the Convention.

4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of this Article. When it seems advisable for the purpose of reaching an agreement, the competent authorities may meet together for an oral exchange of opinions.

5. In the event that the competent authorities reach such an agreement, taxes shall be imposed and, notwithstanding any procedural rule (including statutes of limitations) applicable under the law of either Contracting State, refund or credit of taxes shall be allowed by the Contracting States in accordance with such agreement.

Article 14: Exchange of Information

1. The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Convention or of the domestic laws of the Contracting States concerning taxes covered by this Convention insofar as the taxation thereunder is not contrary to this Convention. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes which are the subject of the Convention. Such persons or authorities shall use the information only for such purposes. These persons or authorities may disclose the information in public court proceedings or in judicial decisions.

2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation: a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; c) to supply information which would disclose any trade, business, industrial, commercial, or professional secret or trade process, or information the disclosure of which would be contrary to public policy (ordre public).

3. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall obtain the information to which the request relates (including depositions of witnesses and copies of relevant documents) in the same manner and to the same extent as if the tax of the requesting State were the tax of the other State and were being imposed by that other State. 4. If by reason of Article 7 or 9 any property would, without regard to paragraph 1 of Article 11, be taxable only in the Contracting State in which the decedent or donor was domiciled and tax due in that State is not paid, then the competent authorities may agree that tax will be imposed with respect to such property in the other Contracting State notwithstanding Article 7 or 9.

Article 15: Members of Diplomatic Missions or Consular Posts

1. Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements.

2. This Convention shall not apply to officials of international organizations or members of a diplomatic mission or a consular post of a third State, who were established in a Contracting State and were not treated as being domiciled in either Contracting State in respect of taxes on estates, inheritances, or gifts, as the case may be.

Article 16: Land Berlin

This Convention shall also apply to Land Berlin, provided that the Government of the Federal Republic of Germany does not make a contrary declaration to the Government of the United States of America within three months of the date of entry into force of this Convention.

Article 17: Entry Into Force *)

1. This Convention shall be subject to ratification in accordance with the applicable procedures of each Contracting State and instruments of ratification shall be exchanged at Washington as soon as possible.

2. This Convention shall enter into force upon the exchange of instruments of ratification and its provisions shall apply generally to estates of persons dying and gifts made on or after January 1, 1979.

3. In addition, in the case of estates of persons having died on or after January 1, 1974 and before January 1, 1979, the competent authorities of the Contracting States may consult together with a view to eliminating double taxation not avoided by internal relief measures. To this purpose they may, under the provisions of Article 13, allow taxes of one Contracting State to be credited against taxes of the other Contracting State notwithstanding differences of internal rules regarding situs and domicile.

Article 18: Termination

This Convention shall remain in force until terminated by one of the Contracting States. Either Contracting State may terminate this Convention, through diplomatic channels, at any time after three years from the date on which this Convention enters into force provided that at least six months prior notice has been given. In such event the Convention will not apply to estates of persons dying after or gifts made after the December 31 next following the expiration of the six-month period.

*) The Convention of December 3, 1986 entered into force on June 27, 1986 (published on page 860 of the Federal Gazette - BGB - of July 24, 1986 ). The Protocol of December 14, 1998 entered into force on December 14, 2000. (Announcement of ..... BGBl. 2000 II. S ....) and is applicable to estates of persons dying and gifts made on or after that date.

Paragrahs 5 and 6 of Article 10 were added and paragraph 1 of Article 11 which was replaced by the Protocol shall, notwithstanding any limitation imposed under the law of Contracting State on the assessment, reassessment or refund with respect to a person´s estate´s return, have effect with respect to deaths occuring and gifts made after November 10, 1988, provided that any retrun or claim for refund asserting the benenefits of this Protocol shall be filed within one year of the date on which this Protocol enteres into force or within the otherwise applicable period for filing such claims under domestic law.

Note

The above text contains the German-American Double Taxation Convention of December 3, 1980, as amended by the Protocol of December 14, 1998. This version is unofficial; we assume no legal liability for its accuracy.

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