Tax - the one pager: Real estate transfer tax

Legal situation before 16 October 2023

Previously, the jurisdiction regulations of the identical federal state decrees of 1 March 2016, p. 4541, BStBl. 2016 I p. 282 applied.

Legal situation after 16 October 2023

The effects of the new view of the tax authorities on the responsibilities pursuant to Section 17 (3) no. 2 GrEStG and the interaction of the new attribution system with the previous state decrees have not yet been clarified. Two points should be noted:

• According to Section 2.1 of the GLE, it must be examined whether a company owns real estate. For this purpose, this company must have previously realised an acquisition transaction within the meaning of Section 1 (1) or (2) GrEStG. In this case, the company in which the share transfer takes place directly is not to be taken into account.
• According to No. 2.2 of the GLE, it should then be examined whether another company (involved in the land-owning company) has also realised a § 1 Para. 3 or 3a GrEStG in relation to the property.

According to reports, the tax office in whose district the property is located will continue to be responsible for determining the real estate transfer tax.

Inconsistent application of the GLE

In view of the consequences of incorrect notifications, the examination of responsibility is an important point. Clarification would be welcome. At least in NRW, clarification seems to be underway. A standardised nationwide approach would be desirable.

Key takeaways:

Without notification pursuant to Section 19 GrEStG to the correct tax office, there is a risk of losing the benefit of Section 16 (4a) GrEStG.
Notifications should also be sent to the tax offices of the companies owning the land.

Failure to notify can also have further consequences.