I. Aim of the planned RETT reform

Transactions that result in a change of legal ownership for a domestic property are subject to RETT. But even without such a change, according to current law and under certain circumstances, RETT may become due if not the property itself, but “only” shares in a company with domestic property are being transferred to a (new) acquirer. This currently requires a threshold value of at least 95 % of the shares, 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.
Current regulations make it possible to avoid RETT burden trough appropriate structuring of share acquisitions to a large extent, which is why the German Federal States, who fully benefit from the respective revenue of RETT, request a more stringent regulatory framework concerning RETT in connection with so-called share deals for companies with domestic property. With this, it is intended to “prevent abuses”, “narrow the scope for action” and to make a transfer of shares instead of a transfer of the property itself “unappealing”.
Upon the Federal States working group’s presentation of a working paper with key points on the planned reform on June 21, 2018 (see our newsletter article 2018 | Q3), it has taken almost a year until the first legislative draft was presented by the Federal Ministry of Finance on May 8, 2019. The draft bill includes the tightening of current regulations concerning share transfers, as requested by the Federal States, and substantiates for the first time proposals for the temporal scope of application of the new regulations.

II. Planned changes for so-called share deals

As per the draft bill, the threshold value for share transfers shall be lowered from at least 95 % of the shares in a real estate company to at least 90 %, in accordance with § 1 para. 2a, para. 3 and para. 3a of the German Real Estate Transfer Tax Act (Grunderwerbsteuergesetz, GrEStG). On the plus side, it seems to be that the equally discussed lowering of the shares to at least 75 % or 50 %, respectively, is off the table – at least for now.
As expected, it is also planned to extend the deadlines set within the Real Estate Transfer Tax Act in general from five years to ten years. This means that even with changes in the shareholder structure of a partnership, in future, the status of the so-called former partner shall be reached not until after 10 years. The reservation and retention periods in the exemptions regulations of §§ 5, 6 and 7 GrEStG are also to be extended accordingly. In the case of certain share associations, which follow a change in the shareholder structure of a partnership that cannot be taxed because the threshold values are not reached, an extension of the so-called reservation period to even fifteen years is intended.
The tightening in regard to the share transfer of corporations, as requested by the Federal States, shall also be implemented. For instance, with the introduction of a new substitute event it is intended to deem a purchase of a plot of land to have happened, whenever a change of the shareholder structure of a corporation with domestic property occurs within ten years in such a way, that at least 90 % of the shares are transferred directly and/or indirectly to new shareholders. Share acquisitions on the grounds of death, as it is common with partnerships, shall be disregarded. The common practice to pool shares by having a co-investor purchase a “dwarf portion” of the land corporation and thereby avoiding RETT, would therefore no longer be possible.

III. Further tightening through the planned reform

According to the draft bill, a further tightening of the current legal situation is also planned for the following issues:

• Abolition of limitation of delay surcharges,
• Baxation by land tenure value for land transfers between legal entities involved in a conversion or contribution within the income tax retrospective period.

The background to the proposed amendments is as follows:

1. Abolition of limitation of delay surcharges

Pursuant to § 19 GrEStG, the tax debtor is obligated, among other things, to notify the tax office competent for determining the RETT, that an event relevant according to § 1 para. 2a, para. 3 or para. 3a GrEStG has come into effect. This duty of disclosure must also be adhered to, whenever, for instance, no tax is triggered due to tax exemption regulation.
In accordance with § 19 GrEStG, this disclosure has the qualtity of a tax return, thus in the event of failure to give notice on time, pursuant to § 152 Regulation of Taxation (Abgabenordnung, AO), a surcharge might be set. For every month or part thereof at the incurred delay, this surcharge shall be 0.25 % of the understated tax, at least, however, EUR 25.00 per month but in general no more than EUR 25,000.00. In future, for notices in accordance with § 19 GrEStG, the aforementioned limit of EUR 25,000.00 shall be suspended.
The draft bill states as an explanation that, in case of breach of duty, the existing limitation for high valued real estate does not lead to an appropriate sanctioning and thus, the aim of prevention can currently not be achieved. With abolition of limitation, this is supposed to change in the future, as this allows for determination of substantially relevant amounts vis-à-vis those obligated to give notice.

2. Taxation by land tenure value

In general, RETT is measured in accordance to the value of the financial consideration for the transfer of the land plot. It is assumed, that the value of this consideration is identical with the market value of the land plot, due to opposing interests of the contracting parties. If there is a lack of such opposing interests, and, from the point of view of the tax authorities, the financial consideration agreed upon is understated, then this is irrelevant for lax transfer tax purposes. “Compensation” for such RETT shortfalls is achieved by determination of donation.
If not the land plot itself is transferred and the RETT is triggered by, e.g. a share transfer through a substitute event, then the tax is calculated according to the so-called land tenure value, which at least approximates the market value to a large extent. The same applies to conversions and contributions, for in those cases, a consideration for the land transfer is missing.
Since the determination of the RETT in accordance with the agreed financial consideration takes precedence to taxation by land tenure value, a corresponding optimization of the tax burden regarding conversion and contribution has been achieved so far. This was possible, for example, as the legal entities involved in the conversion process had alienated the domestic land plot from transferor to transferee below the market and land tenure value in the income tax retrospective period, and only then was the conversion performed under civil law. In these cases, the fixated RETT was based on the (understated) financial consideration, which, in turn, prevented observation of the higher land tenure values, which, without the prior sale, would have come into effect with the conversion. No compensation was paid, as the transferee entered into the tax status of the transferor and therefore no donation or hidden profit distribution could be assumed.
Now, it is on the agenda to put a stop to this. Therefore it is intended that the determination of the RETT according to the land tenure values takes precedence over taxation according to an agreed financial consideration, whenever an acquisition process pursuant to § 1 para. 1 no. 1 GrEStG between those legal entities involved in the conversion process within the retrospective period in accordance with §§ 2, 20 para. 6 and 24 para. 4 German Conversion Tax Act (Umwandlungssteuergesetz, UmwStG) is realized and the financial consideration agreed upon is below land tenure value. Further prerequisite is, that without the acquisition process, taxation in accordance with §1 para. 1 no. 3 or para. 3a GrEStG would have been triggered.

IV. Temporal scope of application of the planned reform

As mentioned before, the draft bill also includes suggestions concerning the temporal scope of application of the new regulations. A positive aspect is, that these suggested amendments are to be applied on acquisition transactions which are to be realized after 31 December 2019. If the draft bill is passed by the Federal Council of Germany and German Parliament as it stands, then the feared issue of retroactivity is off the table. Another positive factor is, for reasons of legitimation of the amended § 1 para. 2a GrEStG and due to the newly created taxation structure for share transfers of corporations, this shall not apply to share transfers which are based on obligation transactions, which are to be finalized up to one year before the date of submission to the German Parliament of the draft bill and fulfilled within one year upon this date.
Due to the lowering of threshold values and the extension of retention periods, partly limited to five years and partly unlimited, the existing regulations shall continue to apply. The reason for this is, that structures which already exceed the new threshold values of 90 %, but still fall short on the old ones of 95 %, ought to be included in future share transfers. By continued validity it is also to be ensured that with the extension of the time limit from five to ten or fifteen years partner in a partnership do not retrospectively lose their status as a former partner or the material benefits pursuant to §§ 5, 6 and 7 GrEStG.
The planned application regulations are extremely comprehensive and sometimes very complex. So shall, for example, the previous deadline of five years in accordance with § 1 para. 2a GrEStG only continue to apply for such shareholders, who already have reached the status of former partner by the end of 31 December 2019. In comparison, shareholders who can, according to the old rules, still be qualified as new shareholder as of 1 January 2020 shall already have to consider the deadline of 10 years. Further planned is a rank ratio between the previous regulations and the new ones. It is intended to only allow continued application in those cases, in which no land transfer tax is triggered by the amended regulations.

V. Impact on consulting practice

The draft bill regarding the RETT reform, presented by the Federal Ministry of Finance, provides information about what, in future, will have to be taken into account with land transfer transactions which take place by means of share transfer. Fortunately, this draft bill does not include any big surprises.
The lowering of threshold values to 90 %, the extension of the deadlines from five to (in general) ten years and the amendment of the new taxation structure by adding one regulation for corporations, which is based on § 1 para. 2a GrEStG, is likely to come into effect. Positive is however, that there is apparently no retrospective application of the amended or new regulation. Though, it remains to be seen which amendment will arise during the legislative process. The federations now have had time until 5 June 2019 to comment on the draft bill.
For those conducting transactions, it furthermore means to keep an eye on the planned amendments. However, the all-clear signal regarding the retroactivity cannot be given yet, despite the presented draft bill and the proposals contained therein. Those who want to take advantage of the currently valid regulations will have to make due with appropriately structured kickback clauses.