The separation triggers real estate transfer tax as a form of division (§ 1 UmwG) if a property is transferred to another legal entity within its framework. However, the participants can avoid this if the requirements of the so-called Group Clause (§ 6a GrEStG) are met. We give an overview of this regulation and show when no real estate transfer tax is incurred during the separation!
1. The separation: Real estate transfer tax according to § 1 (1) no. 3 GrEStG!
The separation constitutes a conversion law operation (§ 1 (1) no. 2 UmwG). The transferring entity shall split off part of its assets for transfer to a new entity. For example, a partnership (OHG) could split off its “Warehouses” division into a newly founded or existing GmbH “Warehouse Management”.
Real estate transfer tax arises upon separation. Because the operation falls under § 1 (1) no. 3 sentence 1 GrEStG. However, this only applies if there is actually land in the transferred asset; In this case, the property value determined in accordance with § 151 BewG is subject to taxation.
The background is that in the spin-off, all assets are transferred to the new legal entity – for example, a GmbH. However, the basis for this transfer is not a “classical” notarial contract, but civil law regulations and contractual agreements. The property therefore changes the legal entity without a separate sales contract and without disposition and is henceforth, for example, attributable to a limited company.
No real estate transfer tax in the event of separation: The group clause of § 6a GrEStG
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This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.