BFH: No Clarity on Statutory Requirement under § 57 (3) AO

The decision of the BFH dated 22 May 2025, published on 17 July 2025, did not resolve the legal question of whether the so-called “double statutory requirement” exists in the context of cooperation under § 57 (3) AO. Instead, the BFH submitted three questions to the CJEU for a preliminary ruling under Article 267 TFEU, asking whether the provision of § 57 (3) AO may constitute unlawful state aid under Article 107 TFEU.

§ 57 (1) sentence 1 AO stipulates that a tax-privileged corporation must directly pursue its purposes. It is also possible to use a so-called auxiliary person within the meaning of § 57 (1) sentence 2 AO. This person may only claim the benefits for tax-privileged purposes if they themselves meet the requirements of §§ 51 et seq. AO.

The Annual Tax Act 2020 introduced a change to the requirement of directness with the inclusion of § 57 (3) AO. According to § 57 (3) sentence 1 AO, a corporation also directly pursues its tax-privileged purposes if it does so in accordance with its statutes through planned cooperation with at least one other corporation that otherwise meets the requirements of §§ 51 to 68 AO (so-called service corporation).

According to § 57 (3) sentence 2 AO, services provided in the realization of the common purpose within the framework of a commercial business operation by the service corporation should be rendered within a tax-privileged special-purpose operation, provided the legal requirements of §§ 65 et seq. AO are met. The legislator’s aim was to enable corporations to proceed in a tax-privileged, division-of-labor manner in order to jointly realize a tax-privileged purpose (BT-Drs. 19/25160, p. 202).

According to the tax authorities, it is necessary that the corporation with which the cooperation takes place, as well as the nature and manner of the cooperation, be regulated in the statutes of both corporations (double statutory requirement).

The Hamburg Fiscal Court ruled on 26 September 2023, with detailed reasoning, that there is no legal basis for the double statutory requirement. The Hamburg tax office filed an appeal. In its decision of 22 May 2025, the BFH stated that the objections raised in the appeal were not convincing and that the decision of the Fiscal Court was fundamentally correct.

However, the BFH raised the question of whether the provision of § 57 (3) AO could constitute unlawful state aid within the meaning of Article 107 TFEU. If § 57 (3) AO constitutes unlawful state aid, a prohibition on implementation under Article 108 (3) TFEU would apply. The tax office’s appeal would then be justified.

The BFH specifically asks whether Article 107 TFEU should be interpreted to mean that state aid falling under this provision exists if, under a national regulation, a corporation is granted the tax benefit of a special-purpose operation for an economic activity even if it does not directly pursue its tax-privileged statutory purposes itself, but does so in accordance with its statutes through planned cooperation with another tax-privileged corporation, thereby enabling it, as a service corporation, to provide tax-privileged services of any kind to the other corporation in competition with non-tax-privileged service providers.

Due to the BFH’s referral to the CJEU, there is still no legal certainty for tax-privileged corporations regarding the double statutory requirement. However, the impact on the non-profit sector would be significantly greater if the CJEU were to consider the introduction of § 57 (3) AO as unlawful state aid.

The corresponding judgment (in German) can be found here.