Spouses, registered partners, but also non-marital unions often share a lot. This is why – especially single-earner partnerships – have joint accounts. But are such joint accounts subject to donations? So far, this has been controversial in the jurisdiction of the financial courts. Now, however, the Federal Finance Court created clarity. We explain!

1st gift tax for grants between spouses

In principle, gift tax law treats grants between spouses as well as all other gifts. Therefore, they too may be subject to gift tax. The problem here, however, is that so-called marriage-related benefits are recognized in civil law. These are gifts made in the expectation of the continuation of marriage. Therefore, the grant should be earmarked and not generous. However, such marriage-related benefits are foreign to gift tax law. Rather, grants between spouses are also generally subject to gift tax.

Outside the property regime of the community of property, there are strictly separated assets of the spouses during marriage. Therefore, any transfer of assets or access to the joint account or to the account of the other spouse can potentially constitute a gift. Therefore, gift tax benefits can also be present if payments are made to a joint account.

2nd type of joint accounts

2.1 The Oder account

The typical joint account is an OR account. In principle, the spouses are universal creditors within the meaning of § 428 BGB. In accordance with § 430 BGB, they are therefore legally entitled to equal shares in relation to each other, unless another is determined. However, the Federal Court of Justice (BGH) now assumed that something else is regularly determined by law. Explicit or tacit agreements, the purpose and handling of the account or rules on the marital union usually indicate that another is intended. The proof can be easily led. If the spouses present the internal relationship of their marriage in accordance with the above, the information may be followed regularly. Something else only applies if there are objective indications that cast doubt on the correctness of the presentation. During an intact marriage, the legal rule is therefore the exception. Thus, in principle, a compensation obligation is excluded.

2.2. Community securities depository

According to the case law of the BGH, a distinction must be made between the rights arising from the custodian agreement concluded with the bank and the ownership of the securities held in the custody. In the case of the custodial custody contract § 430 BGB can be relevant. Only in relation to the rights under the custody agreement but not in relation to the securities held in custody can the holders of an OR community custodian be general creditors.

There is no overall creditorship of bearer papers. In the case of bearer paper, the right from the paper follows the right to the paper. The decisive factor is therefore the real right, i.e. the property situation. As a rule, the establishment of a depot as an OR depot does not provide any information about the ownership situation. For the ownership situation of custodian securities, however, § 1006 BGB makes a presumption. In the case of indirect ownership, the presumption speaks for the indirect owner (§ 1006 paragraph 3 BGB). In co-ownership, it speaks for joint ownership. As a rule, with regard to § 741 BGB, co-ownership after fractions is to be assumed. In case of doubt, the shareholders are entitled to equal parts (§ 742 BGB).

3. Gift tax assessment of the Community account

3.1. Measures of the assessment of a free grant with a joint account

In the case of an Oder account, there is regularly no compensation obligation between the spouses in the internal relationship. Therefore, it is questionable whether the payment of one spouse to a joint account of both spouses can be a free grant within the meaning of § 7 (1) no. 1 ErbStG to the other spouse. A free grant exists if and to the extent