Contrary to a widespread view, an acquisition transaction is not already exempt from real estate transfer tax because the acquirer is to hold the property merely as a trustee for the seller as trustor. (BFH, Beschlussl. v. 30.11.2020 - II B 41/20)

A KG, acquired by notarized purchase agreement, in which also the conveyance was declared, a multi-family house. On the following day, the seller concluded a notarized trust agreement with the KG. Afterwards the KG was to hold and reorganize the property on danger and for calculation of the Veräußerin and was obligated to the at any time retransfer.

The parties were the view, the acquisition by the trustee did not fall under the land acquisition tax, because with the disinterested trust - as in the controversy - the property was only a contentless formal cover. The trustee has no powers whatsoever and is not the beneficial owner.

The BFH, however, sees this differently: the acquisition of a trust from the settlor is taxable under Section 1 (1) No. 1 GrEStG, or if applicable under Section 1 (1) No. 2 GrEStG. Under civil law, the trustee acquires a claim to transfer of ownership of the property and, at the latest, ownership of the property through the conveyance. Neither the parties' agreements under the law of obligations nor a claim to retransfer of ownership agreed at the same time change this. The economic approach of § 39 (2) No. 1 AO does not apply (!). To what extent the property of the trustee has an economic value is therefore not decisive.

For questions about the trust relationship, please contact attorney and notary Dr. Wolfgang Probandt.