No consideration of the maintenance reserve for land transfer tax purposes

22. August 2021
From Probandt
Reading time: ca. 2 Minuten

Once again, the Federal Fiscal Court (Bundesfinanzhof, BFH) has addressed the question of whether the maintenance reserve reduces real estate transfer tax and answered in the negative (BFH, judgment of 16.9.2020 - II R 49/17).

As a notary who is frequently involved in the notarization of purchase agreements for apartments and commercial units, one is repeatedly confronted with the request to show the maintenance reserve as part of the purchase price. The background to this is the widespread view that the maintenance reserve is acquired as a separate asset and is therefore not to be taken into account in the assessment basis, so that no real estate transfer tax can be incurred for it. As a result, the assessment basis for the real estate transfer tax is to be reduced by the maintenance reserve.

In fact, this view was still justifiable at a time when the legal capacity of the condominium owners' association had not yet been recognized. Since the decision of the BGH (BGHZ 163, 154 = NJW 2005, 2061) and (following their findings) WEG amendment 2007, the legal capacity of the condominium owners' association is generally recognized. Since then, the purchaser of a condominium unit for which a maintenance reserve has been formed no longer acquires an apartment on the one hand and a maintenance reserve on the other, but an apartment to which the maintenance reserve inseparably belongs.

Since the tax is calculated according to the value of the consideration, the purchase price is in principle to be used as the basis of assessment (§ 9 I No. 1 GrEStG). However, a division of the purchase price in accordance with the principles for the division of a total consideration is only required if the purchase agreement also includes items whose acquisition is not subject to real estate transfer tax. However, the pro rata maintenance reserve is part of the administrative assets of the condominium owners' association and cannot be demanded by the selling owner as such or sold separately; it is therefore a necessary component of the condominium unit (as already stated in BFH, judgment of March 2, 2016 - II R 27/14 on the acquisition of a condominium by way of compulsory auction). The separate designation of the maintenance reserve can therefore be waived - at least for reasons of real estate transfer tax.

If you have any questions on this subject, please contact attorney and notary Dr. Probandt.

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