German Taxation of US Grantor Trust ETFs

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I‘d like to share what I know about this and put the little conundrum out there of how this should be taxed in DE.
If anyone has any constructive ideas or experience,
I’m all ears.

WHAT IS A GRANTOR TRUST ETF

 

  • A person's shares in any US ETF aren't necessarily treated the same in terms of taxation or what the shareholder actually owns since not all US ETFs have the same legal structure. To know which ETF has which structure, you need to read the specific ETF prospectus.
  • Physically-backed commodity ETFs are often formed as "grantor trusts" (as opposed to the common "open-ended funds" for securities). These are formed in the US on the legal basis of the Investment Company Act of 1933 and 1934. They give a direct interest in a fixed portfolio. Examples of this is SGOL or GLD, the world's largest gold ETF .
  • The trusts holdings are separate from the finances of the company and thus "Sondervermögen", meaning that even if the company is bankrupt, the shareholder will be paid out the equivalent of the value of the shares.

Some further juicy legal bits from the SGOL prospectus (here):

  • SGOL is a „Grantor Trust“ formed and subject to New York law.  Further, it is a "non-mortgage widely held fixed investment trust".
  • The Shares represent units of fractional undivided beneficial interest in and ownership of the Trust.
  • The Trust holds only gold bullion and, accordingly, received no income during the year.

 

HOW ARE THEY TAXED IN THE US

 

A bit of a pain, but clearly defined.

  • The US taxation of these ETFs on the federal level is lined out in tax documents provided by the ETF. The grantor trusts are pass-through entities, meaning that the IRS treats the shareholder as if they own the actual thing the ETF holds (i.e. gold) and the shareholder is directly taxed for any distributions, expenses and so on. This is done without the shareholder ever actually posessing the commodity.
  • Simply owning these ETFs without selling any shares causes capital gain / loss calculations for a federal US tax return. This is because the ETF expenses (TER) are funded by selling some of the underlying gold, teeny tiny bits, each month. These sales are made automatically and the money is never received by the shareholder, it goes straight to the institutions involved in maintaining the ETF. But since the shareholder is treated as the owner of the fund's holdings, each sale is a taxable event. This math becomes pretty unwieldy without a spreadsheet, especially if you have multiple lots since the calculation is done on a per-lot basis. The shares of each individual lot will have originally been worth a different amount of gold which is adjusted downward over time. Also, each lot is held for a different period of time which is relevant to determine if the sale was long or short-term.
  • When the ETF shares are sold, these micro TER sales are factored in to adjust the cost basis down.

 

HOW ARE THEY TAXED IN GERMANY

 

I doubt there is a definitive answer.

 

The issues are several about why this isn't common knowledge / maddeningly niche...

  • Germany doesn't have trusts and interprets them on a case-by-case basis.
  • Grantor trusts in the US are also used for estate planning and most literature deals with that use case.
  • MIFID II makes purchasing any US-domiciled funds as a European resident nearly impossible since mid-2018.
  • Germany doesn't allow ETFs which only have a single holding seit 22. Juli 2013 / Inkrafttreten von Kapitalanlagegesetzbuches (KAGB).
  • The rough German equivalent for people interested in exchange traded commodities is an ETC, which is an "Inhaberschuldverschreibung" / bearer bond. Some of these are physically backed by a single commodity. These ETCs are generally treated as "Wertpapiere" and not as owning the physical commodity yourself unless they meet very specific conditions outlined here. These conditions do not apply for most common US grantor trust ETFs. https://www.bundesfinanzhof.de/de/entscheidung/entscheidungen-online/detail/STRE202010206/

 

> the crux is whether Germany views the grantor trust commodity ETF shares as some sort of passive investment interest in the commodity market (and therefore as ownership of shares in a fund) or actual ownership of the physical commodity (like the US does).

 

If commodity, then the US and DE methods line up fairly squarely in terms of calculations involved to compute capital gains and losses on the monthly micro sales and the final sales of the shares. It should be mentioned that the income tax would be quite different. Kapitalertragssteuer for gold is taxed according to EStG § 23, not EStG § 20. EStG § 23 is much more favorable for gains in Germany as it is tax free after a holding period of a year, though these tax savings could be largely moot for a US citizen in Germany since the US will tax the gold as a collectible (generally with your ordinary income rate) no matter what.

 

If shares, then I do not know how Germany would tax the monthly micro sales within the trust with no sale of shares or how this would interact with the final sale of the shares themselves. The micro sales might simply be ignored as TER (like for open-ended funds) and the final sale is not adjusted. Or the micro sales math looks something like „return of capital“, previously dicussed for a „NY royalty trust“ here: https://www.toytowngermany.com/forum/topic/342543-wash-sales-in-german-tax-law/?do=findComment&comment=3582373 although I assume it would actually be something different, but the basis is adjusted downward over time by the micro sales, which themselves would be taxed in the present day (as a dividend?).

 

I tried breaking down the structure of SGOL/GLD to figure out how DE might view it, but realized I do not know how such a thing would be determined by Germany… the definition of fund could be looked up, but the definition of owning something through something like an ETF grantor trust? I just don’t know where to start.
> If someone has an idea how to view this through a German lens (the process or the end result, although less satisfyingly stimulating), holler.
  I'm ready to level up!


 


 

 

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