Real estate transfer tax on the non-cash formation of a KG by transfer of shares

Real estate transfer tax again!

Extension of the chain of shareholdings in land-owning corporations within the temporal scope of application of Section 1 (2b) GrEStGFG Baden-Württemberg (judgment of 26.4.24 - 5 K 1696/23). 24 - 5 K 1696/23) confirms, as expected, tax liability in a case of a spin-off to absorb a land-owning GmbH into a KG that had recently been founded “itself.”

Under the legal situation until June 30, 2021, the transaction was (only) taxable pursuant to Section 1 III No. 3 GrEStG, but tax-exempt pursuant to Section 5 II GrEStG. This means that the “prevention of abuse” by Section 1 (2b) GrEStG once again proves to be less than accurate.‍

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FC Nuremberg: no dispensation from reservation periods

The formation of the KG in kind is not comparable with the cases in which the BFH considers compliance with the reservation period of § 6a sentence 4 GrEStG to be dispensable. The obligation to make the contribution in kind is to be separated from its execution, even if the transfer of shares takes place immediately.

This is a continuation of what applies in the area of real estate transfers, because section 6a sentence 1 GrEStG only includes section 1 para. 1 no. 3 GrEStG in the privileged status, which is serious for partnerships because sole traders cannot outsource to them to form a new company (cf. section 152 UmwG). At the same time, the decision shows that the introduction of section 1 para. 2b GrEStG is poorly crafted.

This is because an acquisition transaction pursuant to § 1 para. 3 no. 3 GrEStG by a KG of the sole shareholder was and is tax-exempt pursuant to § 5 para. 2 GrEStG. The legal consequence that has occurred here has nothing, absolutely nothing, to do with the abuse-preventing objective of the 2021 real estate transfer tax reform!

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