According to § 15b (1) EStG, there is a so-called offsetting prohibition of losses if they are based on a tax deferral model. With the standard, the legislator wants to restrict corresponding models and ensure taxation according to the principle of performance. First and foremost, it has a preventive effect, i.e. it should avoid the emergence of new tax deferral models from the outset. Let us take a look at how § 15b EStG affects in practice and what legal consequences arise for taxpayers.
Principle 1: Tax deferral models as contradiction to the performance principle
The taxation of income and income should in principle be carried out according to the principle of efficiency as well as in relation to the taxation period, in income tax law the calendar year. This principle is also based on the progressive tax rate of § 32a EStG. Those who earn more or less in the corresponding period pay correspondingly high or low income taxes.
According to the will of the legislature, a so-called deferral should only be possible in the case of (temporary) payment difficulties of the taxpayer. According to § 222 AO, it enables the tax office to grant or refuse a deferral in whole or in part within the scope of its discretion. The tax must then be paid accordingly later, the taxpayer is granted deferred payment. In any case, however, a distinction must be made between tax savings and tax deferral models, since the former are explicitly not covered by § 15b EStG:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.