From a wave of criticism to recognition: eSports is set to become a non-profit activity from 2026. Dr. Oliver Daum explains which paragraphs have been amended and which uncertainties remain in an interview with eSports.
When the phrase “introduction of eSports as a new non-profit purpose” first appeared in the initial draft of the 2025 Tax Amendment Act, there was no cause for celebration – even though it was a huge step forward. After all, politicians had failed to deliver on their promise for seven years.
Lawyer Dr. Oliver Daum explains why criticism nevertheless rained down in an interview with eSport: “The first draft contained an overly restrictive description of eSports. For example, the requirement ‘on a computer or game console’ meant, among other things, that non-profit eSports would not have been possible in mobile games or games on other hardware that are not computers or game consoles.”
Another point of contention was the passage stating that games “in which raw violence, such as killing people, is realistically simulated or tolerated” would be excluded. “That was a criterion that was difficult to grasp and could mean everything or nothing,” says Dr. Daum.
Certain disciplines remain excluded
Instead of rapprochement, the draft even suggested distancing. The turnaround a few days later was all the more surprising: eSports is to become non-profit in 2026. This is based on a number of adjustments to the draft, including the definition. However, Dr. Daum still finds this problematic.
Since only computer and video games are mentioned, projects such as Excel Esports continue to fall through the cracks. However, the newly chosen wording gives cause for hope: the legislator now describes “how eSports are understood and not how they are defined.”
With this chosen wording, the legislator wants to leave a back door open in order to be able to react to changes if necessary. “Rather, the legislator’s definition is one of four different possible interpretations of how standards such as Section 52 of the Tax Code are to be understood. It is therefore entirely possible that a binding definition will emerge over the coming years that differs from that specified by the legislator.”
Shooters in limbo?
There will continue to be many question marks surrounding shooters, even though there have also been adjustments to this paragraph. The current draft law now states: “Games without an age rating from the Entertainment Software Self-Regulation Body (USK) and computer games with content that glorifies violence are not compatible with the principle of promoting the common good.”
Nevertheless, according to Dr. Daum, the situation remains vague: “If organizations offer games such as CS2 and Fortnite, it is possible that a tax office could deny them non-profit status because, in its legal opinion, they contain ‘content that glorifies violence.’ In the worst case, this could lead to additional tax claims. I am certain that there will be court proceedings on the question of whether certain titles have content that glorifies violence.“
He clearly describes how long this could take: ”If this issue ends up in court, it may be that a tax court in Hamburg, for example, answers this question differently than a tax court in Bavaria. The tax courts are not bound by the decisions of other tax courts. Only if the Federal Fiscal Court in Munich were to be called upon to rule on this issue would its decision be binding. However, it could take years before the Federal Fiscal Court would issue a ruling in this regard.”
Accordingly, the lawyer has a tip: “For clubs, organizations, and other actors that offer multiple eSports disciplines, it is therefore advisable from a practical point of view that they specify the various eSports titles when submitting their application. This allows the tax office to comment in advance on whether certain titles may be excluded from non-profit status.”
