The acquisition of a car by the entrepreneur has advantages, but also disadvantages. The latter consist mainly in the taxation of private use and a subsequent sales profit. With a car rental between spouses, several contra-aspects can be eliminated, but so far there was disagreement on the admissibility of such a model against the background of § 42 AO (design abuse). The Bundesfinanzhof has now clarified various legal issues with judgment of 29.09.2022, V R 29/20, published on 19.01.2023.

The case decided by the BFH was based on the following facts: The wife who was not working in the contested year procured a used upper-class car for gross EUR 77.233,81. The purchase price of the car purchased by the dealer included EUR 12,438,90 VAT (19 %). The total sum was transferred in full by the wife – financially independent of her husband working as a doctor.

Already upon purchase, a car rental between the spouses was intended by concluding a corresponding lease agreement. The wife therefore registered a business enterprise and waived – in favor of the VAT deduction – the small business regulation within the meaning of § 19 (1) UStG.

Then the spouses concluded a lease agreement for the car. In this context, a lease installment of net EUR 815,19 was agreed which, in BFH’s opinion, was indisputably market-conform; The husband undertook,