If the seller of a property has granted a third party a right of usufruct prior to the conclusion of the purchase agreement, and this right has not yet been entered in the land register at the time of conclusion of the agreement, the transaction is subject to real estate transfer tax. This was decided by the Supreme Tax Court in a most recently published judgment.
In a recent decision, the Supreme Tax Court once again granted the taxpayer interim relief in the form of a suspension from execution and held that in the case of an acquisition of shares in a limited liability company (GmbH) where the contractual acquisition transaction (signing) and the actual transfer of the shares (closing) take place at different times, real estate transfer tax may not be levied twice.
The payment for an eco-account connected to the property under state law is part of the consideration for the purchase of the property and must be included in the assessment basis for real estate transfer tax. This was decided by the Supreme Tax Court in a most recent judgment.
In the case of the transfer of assets for partial consideration, the gain is from a private sale and must be allocated into a transaction for consideration and a gratuitous part based on the ratio of the consideration to the market value of the transferred asset. According to the Supreme Tax Court, this also applies if the consideration is below the initial (acquisition) costs.
According to a judgment of the Supreme Tax Court, the extended trade tax deduction pursuant to Section 9 No. 1 Sentence 2 of the Trade Tax Act is not available if a corporation has sold all of its real estate one day before the end of the assessment period (in the case of dispute: “at the beginning of 31 December”) because it was not exclusively and continuously active in real estate management during the whole assessment period.
In a most recent decision the Supreme Tax Court held that the sale of a separate undeveloped (garden) property is not exempt from income tax on the grounds that it was not before used for personal residential purposes.
The ECJ has held that the denial of relief in a member state of residence for a loss made on the sale of property in another member state is not an unjustified restriction on the free movement of capital.
The finance ministry has ruled on a court case holding the increased capital gains scope to be unconstitutional inasfar as the gain could have been realised tax free on promulgation of the new law.
