Restriction of the tax exemption for housing companies

09.04.2018 – The Federal Fiscal Court [Bundesfinanzhof (BFH)] restricted the utilization of tax exemptions for so-called housing companies. Especially companies whose ownership is going to be transferred and own numerous tenanted properties are affected by this recent court ruling.

The transfer of business assets is potentially free of gift and inheritance taxes. This does not apply to tenanted properties held in a company as part of its business assets. However, an exception to this rule exists for housing companies. The court has imposed more stringent requirements for qualifying for such an exemption.

Only transfers that have already been assessed are granted a protection of legitimate expectation. In all other cases it is unforeseeable how this court judgement will affect the transfer taxation of companies with numerous tenanted properties because it is yet unclear how the tax authorities will react. Possible options are amending the respective law, publishing a non-application decree or accepting the judgement mentioned above.

It is recommended to evaluate each individual case regarding whether the requirements for qualifying as a housing company have been met in order to gain assurance on whether such a tax exemption can be used or not. Planned transfers of companies with numerous tenanted properties should be postponed until legal certainty has been achieved.

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