May 31, 2024
In its ruling of 03.05.2023 (II B 27/22), the BFH had the opportunity to decide on the so-called “group clause” of Section 6a GrEStG. This provision prevents real estate transfer tax from being incurred in the event of restructuring within a group.
However, several conditions must be met in order for the real estate transfer tax not to be levied. Among other things, there must be a measure under company law (e.g. merger or spin-off) and a minimum shareholding (very simplified: over 95%).
This minimum shareholding must exist five years after the restructuring, but it must also have existed five years before the restructuring.
If the company is only newly founded as a result of the spin-off, the minimum shareholding cannot have already existed for five years. This is then harmless and this legal issue has already been clarified for some time.
However, unlike in the case of a spin-off for new formation, the spun-off company is not newly formed as a result of the conversion, but already existed before the conversion. According to the BFH in the case decided, compliance with the five-year retention period would then have been de facto possible. The real estate transfer tax must therefore be levied.
Conclusion: Maximum caution is still required for restructurings involving real estate. On the one hand, the RETT provides for various (in some cases double) taxable events, and on the other hand, even necessary restructurings without any intention of abuse are hindered by the monitoring of prior and subsequent retention periods.