Assessment bases of the levy in the task area Securities Trading

(1) For the persons liable to the levy in the group Investment Services Enterprises and Investment Managers, the levy amount is to be assessed in the ratio of the individual levy-liable person's net income to the aggregate net income of all persons liable to the levy in the group, in accordance with the second sentence. Net income is composed as follows:
1. for credit institutions, from the following items of Annex 1 (to section 70) of the Audit Report Ordinance (SON01):
a) net commission income (item 033 of Annex SON01), where the amount is positive or zero,
b) plus the net trading-book result from transactions in trading-book securities (item 034 of Annex SON01), where the balance is positive,
c) plus the net trading-book result from transactions in foreign exchange and precious metals (item 035 of Annex SON01), where the balance is positive, and
d) plus the net trading-book result from transactions in derivatives (item 036 of Annex SON01), where the balance is positive,
2. for financial services institutions that deal in financial instruments for own account or have the power to obtain ownership or possession of customers' money or securities, from the following items of Annex 1 (to section 70) of the Audit Report Ordinance (SON01):
a) the balance of income from transactions in trading-book securities (item 316 of Annex SON01) and expenses from transactions in trading-book securities (item 315 of Annex SON01), where the balance is positive,
b) plus the balance of income from transactions in foreign exchange and precious metals (item 318 of Annex SON01) and expenses from transactions in foreign exchange and precious metals (item 317 of Annex SON01), where the balance is positive,
c) plus the balance of income from transactions in derivatives (item 320 of Annex SON01) and expenses from transactions in derivatives (item 319 of Annex SON01), where the balance is positive,
3. for securities institutions that deal in financial instruments for own account or have the power to obtain ownership or possession of customers' money or securities, from the following items of Annex 1 to the Securities Institution Audit Report Ordinance (WPF-SON01):
a) the balance of income from transactions in trading-book securities (item 316 of Annex WPF-SON01) and expenses from transactions in trading-book securities (item 315 of Annex WPF-SON01), where the balance is positive,
b) plus the balance of income from transactions in foreign exchange and precious metals (item 318 of Annex WPF-SON01) and expenses from transactions in foreign exchange and precious metals (item 317 of Annex WPF-SON01), where the balance is positive,
c) plus the balance of income from transactions in derivatives (item 320 of Annex SON01) and expenses from transactions in derivatives (item 319 of Annex SON01), where the balance is positive,
4. for all other investment services enterprises that do not deal in financial instruments for own account and are not empowered, in providing financial services, to obtain ownership or possession of customers' money or securities, from commission income (item 313 of Annex SON04 or Annex WPF-SON01) less commission expenses (item 314 of Annex SON04 or Annex WPF-SON01). The income data for the calendar year preceding the levy year are to be applied.
(2) For persons liable to the levy in the group Investment Services Enterprises and Investment Managers, the following are, on application, to be deducted from net commission income in ascertaining the levy-relevant results under subsection (1):
1. net income from payment transactions,
2. net income from foreign trade business,
3. net income from travel-currency business,
4. net income from fiduciary loans and administered loans,
5. net income from the brokering of credit, savings, building-society and insurance contracts,
6. net income from loan processing and guarantee business,
7. net income from remuneration received from foreign subsidiaries for deposit business,
8. net income from estate administration,
9. net income for electronic banking services,
10. net income from expert-opinion activities, and
11. net income from other processing fees. The deduction items under the first sentence are to be taken into account by BaFin only where they amount, in total, to more than one-fifth of the total net commission income, and the levy-liable person applies for their disregard before 1 February of the calendar year following the levy year and has demonstrated the existence of the conditions by submitting suitable documents; facts submitted or demonstrated late are disregarded. The amounts of the deduction items must be evidenced by a certificate of an auditor, an audit firm, a sworn accountant, an accounting firm, a cooperative audit association or an audit body of the savings-bank and giro associations.
(3) For persons liable to the levy in the group Investment Services Enterprises and Investment Managers that were not liable to the levy for the whole year, by way of derogation from subsections (1) and (2), the fraction of the ascertained income corresponding to the ratio of the number of months, or parts of months, in which the levy obligation existed to the number of months of the levy year is decisive.
(4) In the group Investment Services Enterprises and Investment Managers, undertakings must communicate the data necessary to assess the levy amount, confirmed by an auditor, an audit firm, a cooperative audit association or an audit body of the savings-bank and giro associations, by 30 June of the calendar year following the levy year at the latest, provided that by that time no audit report on the annual financial statements for the last business year has been submitted to BaFin. For financial services institutions and securities institutions whose balance-sheet total for the last business year does not exceed EUR 150 million, the confirmations under the first sentence may also be given by sworn accountants or accounting firms. Where the data under the first sentence are not available on 1 July, BaFin estimates the income and sets the levy amount on the basis of the estimated data. BaFin may, on application, grant a reasonable further period of up to one month for submitting the data named in the first sentence. In making the estimate, BaFin must as a rule base itself on the levy-liable person's income data from previous business years. Where no data within the meaning of the fifth sentence, and no corresponding data for subsequent business years, are available, the data of undertakings in the levy group of comparable size are to be used accordingly. For undertakings first granted a licence in the levy year, or that have first commenced their licensable business activity, the levy amount corresponds to the minimum levy amount under subsection (6).
(5) For persons liable to the levy in the group Issuers, the levy amount is to be assessed according to the trading volumes of the levy-liable persons' securities that occurred on domestic trading venues within the meaning of section 2(22) of the Securities Trading Act in a levy year. Securities within the meaning of the first sentence are securities within the meaning of section 2(1) of the Securities Trading Act that are admitted to trading on a domestic stock exchange or included in the open market. In assessing the levy amount, subject to the provisions of subsection (6), the amount of the trading volumes reported by the domestic trading venues under the fourth sentence to BaFin for the individual levy-liable person is to be set in ratio to the aggregate trading volumes reported for all persons liable to the levy. The trading venues must provide BaFin with information and submit documents concerning the trading volumes under the first sentence, for the purpose of setting the levy and the levy advance payment. BaFin may require issuers to provide information and submit documents, insofar as this is necessary to set the levy and the levy advance payment. The documents to be submitted under the fourth sentence include confirmations of the reported trading volumes per security by an auditor, an audit firm, a sworn accountant or an accounting firm. The corresponding documents must be submitted within three months after a request from BaFin.
(5a) Section 16f(1), no. 3 applies accordingly to the assessment of the levy amounts in the group Data Reporting Services Providers.
(6) The levy amount to be paid by each person liable to the levy in the group Investment Services Enterprises and Investment Managers, and in the group Issuers, is at least EUR 1,200 in each group.
(7) The Federal Ministry of Finance is authorised to determine in more detail, by statutory instrument not requiring the consent of the Bundesrat, by what means and in what form the application and the evidence under subsection (2), and the trading volumes under subsection (5), are to be transmitted to BaFin, and how the trading volumes under subsection (5) are determined. The Federal Ministry of Finance may transfer the authorisation to issue the statutory instrument under the first sentence, by statutory instrument, to BaFin.