Upside tax deduction for losses that can only be offset in accordance with § 15a EStG (judgement of 11.07.2024 - IV R 18/22)

September 2, 2024

Pursuant to § 15 para. 3 no. 1 sentence 1 alternative 2 and sentence 2 alternative 2 EStG, the business income of a sub-partnership is taxed on the asset management income of a parent partnership.

While there is an - uncertain - de minimis limit for the receipt of one’s own business income, there is no such limit for the participation in a business sub-partnership.

In its decision of 11.07.2024, the BFH ruled that this provision is constitutional.

The fact that the investment income attributed to the plaintiff is an offsettable loss under § 15a EStG, which has no effect on the amount of the plaintiff’s current total income in the year in dispute, does not prevent the upward adjustment.

Investment income within the meaning of § 15 para. 3 no. 1 EStG shall also be deemed to have been received if it is only a matter of offsetting losses within the meaning of § 15a EStG.