I. Introduction

Real estate transfer tax is a transfer tax that relates to and is levied on legal changes to real estate, such as the acquisition of land or rights equivalent to land (e.g. heritable building rights). It is calculated as a percentage of the purchase price or the value of the property and is one of the most important sources of income for the federal states in Germany.
The amount of real estate transfer tax varies depending on the federal state in Germany and is between 3.5% and 6.5%. In accordance with Section 8 (1) GrEStG, the basis for calculating the real estate transfer tax is generally the value of the consideration, although the Real Estate Transfer Tax Act provides for adjustments in certain cases via Section 9 GrEStG.
In a recent ruling, the Federal Fiscal Court had to decide on the application of the provision of Section 9 (2) no. 4 GrEStG, which includes third-party services in the assessment basis for real estate transfer tax. The starting point was an arrangement discussed in the literature to reduce real estate transfer tax by combining a property purchase agreement and a share purchase agreement in relation to a real estate company.

II. Facts of the case

On December 22, 2014, A-GmbH acquired all shares in the plaintiff, also a GmbH, and sold it a commercial property worth EUR 42.2 million. A purchase price of (only) EUR 6.33 million was agreed. The excess property value of EUR 35.87 million was to be paid into the plaintiff’s capital reserves (§ 272 para. 2 no. 4 HGB) as a voluntary additional payment.
Prior to the acquisition of the shares and the transfer of the property, A-GmbH had concluded a purchase agreement with C-AG and D-GmbH on December 8, 2014 for the shares in the plaintiff that were still to be acquired. According to this agreement, C-AG was to acquire 94.9% of the shares in the plaintiff for a purchase price of around EUR 34.07 million and D-GmbH was to acquire 5.1% of the shares for a purchase price of around EUR 1.83 million from A-GmbH as soon as the plaintiff was entered in the land register as the owner of the aforementioned commercial property or the notary at least confirmed that there were no obstacles to the entry. In addition, an assumption by C-AG of the shareholder loan of EUR 6.33 million still to be granted by A-GmbH to the plaintiff and a “restructuring contribution” by C-AG and D-GmbH, in particular to cover the land transfer tax incurred, were agreed. If the purchase agreement for the shares in the plaintiff was not concluded, A-GmbH was obliged to reverse the property transfer and to apply for the real estate transfer tax assessment to be set aside. Any unused restructuring contribution was to be reimbursed.
The competent tax office then issued a real estate transfer tax assessment notice for the acquisition of the commercial property by the plaintiff, in which the purchase price for the property from the transfer on December 22, 2014 and the purchase price from the sale of shares on December 8, 2014 were taken into account. The real estate transfer tax was therefore calculated based on an assessment basis of EUR 42.2 million instead of EUR 6.33 million. Reference was made to section 9 para. 2 no. 4 GrEStG in the explanatory notes to the assessment notice with regard to the consideration of the services provided by C-AG and D-GmbH.

III. Legal classification

Pursuant to Section 8 (1) GrEStG, the tax is generally calculated according to the value of the consideration, as outlined above. This is to be determined in accordance with § 9 GrEStG, whereby in the case of a property purchase, the purchase price including the other services assumed by the buyer and the benefits reserved for the seller are to be taken as a basis (§ 9 Para. 1 No. 1 GrEStG). This also regularly applies if the agreed purchase price, as in the case in question, is below the market value of the transferred property. Only if only a symbolic purchase price is agreed can this not be used as a basis for taxation according to the established case law of the BFH. In this case, the assessment basis must be determined in accordance with Section 8 (2) No. 1 GrEStG.
Pursuant to Section 9 (2) GrEStG, however, consideration also includes other services, such as those provided by a party other than the purchaser of the property to the seller in return for the seller transferring the property to the purchaser (Section 9 (2) no. 4 GrEStG). In this respect, it is necessary that the performance of the third party has a final connection to the transfer of the property to the acquirer, whereby the final connection is to be assessed neither from the perspective of the transferor nor from the perspective of the acquirer. Rather, the purpose is to be determined solely from the perspective of the third party. The acquirer does not need to know anything about the benefit, nor does the third party need to be “in the camp” of the acquirer (BFH of October 22, 2023 – II B 158/02, BFH/NV 2004, 228).

IV. Decision

In the case in question, the lower court had already affirmed the application of Section 9 para. 2 no. 4 GrEStG. In particular, the tax court assessed the provisions in the transfer agreement and the share purchase agreement to the effect that, in addition to the purchase price of EUR 6.33 million, the amounts paid by C-AG and D-GmbH for the shares in the plaintiff totaling EUR 35.87 million were also to be taken into account as consideration for the purchase of the property.
The BFH confirmed the decision: there were a number of indications that C-AG and D-GmbH had a vested interest in the plaintiff owning the land. In particular, the obligation to reverse the property transfer in the event that the purchase of the shares in the plaintiff failed, including the obligation to file an application to annul the real estate transfer tax assessment and the agreed assumption of the real estate transfer tax by C-AG and D-GmbH in the form of the restructuring contribution, in the opinion of the court, speak for a final connection of the services to the property transfer, so that consideration via Section 9 para. 2 no. 4 GrEStG was justified.
The BFH rejected the plaintiff’s view that the consideration in this case should only be determined on the basis of the agreed purchase price because this was not merely symbolic in nature. The plaintiff’s argument that, if the payments by C-AG and D-GmbH were taken into account, this would constitute inadmissible double taxation with real estate transfer tax was also unsuccessful. Apart from the fact that the transaction structure obviously attempted to avoid a consolidation of shares by using a so-called RETT blocker in the form of D-GmbH, the transfer of land was subject to tax in accordance with § 1 para. 1 no. 1 GrEStG, while the transfer of shares would have fallen within the scope of § 1 para. 3 GrEStG. However, these taxable facts are independent of each other (§ 1 para. 6 sentence 1 GrEStG), so that the assessment basis for each of the facts must be determined separately.

V. Note

This case shows how high the motivation is in structuring practice to keep the real estate transfer tax as low as possible. In this case, a real estate transfer tax rate of 6% (Hesse) was to be applied to a property value of EUR 42.2 million. The parties involved had therefore attempted to reduce the real estate transfer tax by agreeing a purchase price that was deliberately set significantly below the market value and to realize the difference in value to the market value of the commercial property via the share purchase price, without a corresponding real estate transfer tax charge.
Until now, the question of whether the share purchase prices should be included in the assessment basis in such an arrangement has been answered differently in the literature (for: Schanko, UVR 2016, 145; against: Behrens, DStR 2017, 82). The case law now provides clarity and puts a stop to this structuring.