IT’S HERE – THE LONG-AWAITED REAL ESTATE TRANSFER TAX REFORM!
In our 2019 | Q2 newsletter we had already addressed the planned real estate transfer tax (RETT) reform which is intended to prevent specific share deal transactions. The legislative process has been on hold since then. However, on 7 May 2021, the corresponding bill has been passed by the Bundesrat. The amendments will enter into force on 1 July 2021.
I. Overview of the amendment
Transactions that result in a change of legal ownership for a domestic property are subject to RETT. However, even without such a tax, under current law real estate transfer tax may already be triggered if not the property itself, but “only” the shares in a company with domestic real estate are transferred to a (new) acquirer. These so-called share deals are currently covered by RETT if a threshold value of at least 95 % of the shares is reached, whereby deferred acquisitions over a period of more than five years may lead to a total or partial non-taxation, depending on whether it is a corporation or a partnership. However, this was a thorn in the side of politicians and is the reason for new RETT provisions.
The main elements of this reform are (i) the reduction of the threshold value from 95% to 90%, (ii) the extension of the holding and observation periods from five to ten years (in some cases even to fifteen years), and (iii) the creation of a new supplementary provision for the change of shareholders in real estate holding corporations.
When comparing the draft version of 2019 (Newsletter 2019 | Q2) with the version of the law that has now been passed, it should be positively emphasized – in addition to the insertion of a so-called stock exchange clause – that for the purposes of the newly introduced substitute facts for corporations, share transfers completed before the provision comes into force, i.e. before 1 July 2021, are expressly disregarded. However, the trust protection regulations for commitment transactions (so-called signing) still contained in the 2019 government draft were not implemented.
Here are the changes in detail:
II. Lowering of the participation rate
As provided for in the draft bill, the threshold value for share transfers for partnerships and corporations was lowered from at least 95 % of the shares in a real estate company to at least 90 %, in accordance with Sec. 1 para. 2a, para. 3 and para. 3a of the German Real Estate Transfer Tax Act (Grunderwerbsteuergesetz – GrEStG). These amendments are to be applied for the first time to acquisition transactions that will be completed after 30 June 2021. The relevant date is the date of the transfer in rem of the shares (so-called closing).
If, in the past, shares were transferred to (directly or indirectly) an acquirer of more than 90 % but less than 95 % of the shares, the previous thresholds shall continue to apply to that extent, unless the transfer transaction triggers real estate transfer tax under the provisions in the respective new version. The same applies to so-called share unions. Accordingly, there will be no taxation gaps as a result of lowering the thresholds.
This transitional provision is limited to five years for partnerships holding real property (i.e. for the purposes of Sec. 1 para. 2a GrEStG). For corporations, on the other hand, the previous thresholds are applicable for an unlimited period of time, so that the increase of a shareholding, for example from 94.9 % to 95 % or more, can still trigger real estate transfer tax decades later.
III. Extension of deadlines
As expected, the deadlines in the Real Estate Transfer Tax Act were extended from five to ten years in principle. The ten-year period applies not only to the new substitute facts in the case of corporations (see below), but also to changes of partners in partnerships and the pre- and post-retention periods of the exemption provisions (Sec. 5, Sec. 6 and Sec. 7 GrEStG). In the case of certain share unions that follow a change in the shareholder structure of a partnership that is not taxable due to falling below the threshold values, the so-called reservation period is even extended to fifteen years (Sec. 6 para. 4 GrEStG).
However, the pre- and post-retention periods for the application of the so-called group clause of Sec. 6a GrEStG were not adjusted. Under this provision, certain transactions subject to real estate transfer tax that are carried out within a group of companies may be exempt from tax. However, it is a prerequisite in particular that the real estate is only transferred within companies in which a controlling company has held the shares for at least five years (transferring entity) and/or continues to hold them for at least five years after the transfer (acquiring entity). A controlling relationship is assumed if at least 95 % of the shares are held directly and/or indirectly. The five-year period will only remain in place for purposes of the intra-group exemption under Sec. 6a GrEStG. This also applies to the aforementioned threshold value of 95 % of the shares.
Particular attention should also be paid to the transitional arrangements in terms of deadlines. For example, in the case of partnerships, the status as an existing shareholder is retained if the five-year holding period has already expired before 1 July 2021. Share acquisitions by such existing shareholders are therefore not to be included in the examination of the new 90 % threshold value. If, on the other hand, a shareholder’s five-year period has not yet expired on 1 July 2021, the shareholder will in future only be deemed to be an existing shareholder after ten years have elapsed.
IV. New substitute facts for corporations
In addition, a tightening of the requirements for the transfer of shares in corporations demanded by the federal states was implemented. Whereas previously only the transfer of at least 95 % of the shares in a corporation directly or indirectly to “one” acquirer triggered real estate transfer tax (which, as shown, continues to be the case with a threshold value of 90 %), an acquisition of real estate is now deemed to have occurred through the introduction of a substitute fact whenever the shareholder structure of a corporation with domestic real estate changes within ten years in such a way that directly and/or indirectly at least 90 % of the shares are transferred to new shareholders. This new provision is comparable to the substitute provision of Sec. 1 para. 2a GrEStG, which previously only applied to partnerships. As in the case of partnerships, share acquisitions by reason of death are not taken into account.
The previously widespread practice of avoiding real estate transfer tax as a result of a share consolidation by having a co-investor acquire a minimal share of (previously) 5.1 % in the real estate corporation is thus no longer possible as of 1 July 2021. If the change in shareholders is completed before 30 June 2021, this is irrelevant for the purposes of real estate transfer tax, i.e. it is not included in the calculation of the relevant 90 % threshold.
Particular caution is required if the signing transaction and the transfer of the shares in rem (closing) do not coincide. Thus, the 2019 draft law still contained a reliance protection provision in this regard, according to which the previous regulations were to apply in the case of connection of transactions prior to the change in the law with execution in rem after the change in the law. Unfortunately, this did not make it into law. This means that share transfers that are concluded before 1 July 2021 but are not executed in rem until after that date are also subject to real estate transfer tax. Whether this is constitutionally permissible will have to be clarified by the fiscal courts in the future.
V. Introduction of a stock exchange clause
For taxation purposes of changes of shareholders in partnerships and corporations, a so-called stock exchange clause is introduced, according to which, for the purposes of the substitute elements of Sec. 1 para. 2a and Sec. 2b GrEStG, transfers of shares admitted to trading on an organized market (Prime Standard and General Standard) are not to be taken into account when determining the 90 % threshold, if the transfer of shares takes place on the basis of a transaction on such a market or a multilateral trading system. The reference to partnerships relates to situations in which a corporation holds a direct and/or indirect interest in a real estate-owning partnership.
VI. Extension of the substitute assessment basis
The planned extension of the substitute assessment basis to certain conversion and contribution cases was also implemented. Thus, real estate transfer tax can still be optimized until the new regulation comes into force by the legal entities involved in a conversion process selling the domestic real estate at a value below the market and real estate value in the income tax retroactive period from the transferor to the transferee and only then completing the conversion under civil law. In these cases, the real estate transfer tax is currently still assessed on the basis of the (too low) consideration, which prevents consideration of the higher real estate values that would be applied in the conversion without a prior sale.
This arrangement will no longer be possible as of 1 July 2021, as the assessment of real estate transfer tax according to the property values will now take precedence over taxation according to the agreed consideration. The prerequisite is that an acquisition transaction pursuant to Sec. 1 para. 1 no. 1 GrEStG is realized between the legal entities involved in a conversion within the retroactive period pursuant to Sec. 2 and Sec. 20 para. 6 and Sec. 24 para. 4 UmwStG and the agreed consideration is below the real property value. A further prerequisite is that, without the acquisition transaction, tax would have been levied in accordance with Sec. 1 para. 1 no. 3, para. 3 or para. 3a GrEStG.
After the reform plans have caused considerable uncertainty in transaction practice over the past two years, not least because there was much speculation about retroactive application, clarity has now been achieved. As expected, the main changes were lowering the threshold values and raising the holding and observation periods. The introduction of a new substitute provision for changes in the shareholders of a corporation is also in line with previous assumptions.
A positive aspect is that the reform is generally only applicable to transfers taking place after 30 June 2021 and that so-called old partners in partnerships do not lose their status for real estate transfer tax purposes. However, due to the legal (non-)regulations, the real estate transfer tax could now strike in cases that were previously already considered non-taxable transactions. Unfortunately, there is no protection of legitimate expectations if the commitment transaction was concluded before 1 July 2021, but the execution in rem does not take place until on or after this cut-off date. Transactions with closing after the reform has come into force must therefore be considered again.
As with nearly every comprehensive reform, only time will tell whether the new regulations achieve the desired goals. It is already certain that the numerous transitional regulations will be dealt with intensively in current transactions.
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