4 years after construction, the office also demands land acquisition tax on the house

  • Erstellt am 2023-10-25 21:54:21

drno1234

2023-10-26 22:55:52
  • #1


I know the BFH decision you quoted above from 7.2.2022, II B 6/21.
This concerns an offer that existed before the property acquisition but was only accepted after the acquisition.
However, I did not have any offer at the time of the land purchase.

Do you also have the source for the text in the lower half of your post?
 

KarstenausNRW

2023-10-26 23:09:37
  • #2


Alternatively to the explanation, Haufe is also quite good because it is understandable for non-lawyers - see the red parts:
Legal Context
If the parties make independent agreements about the obligation to transfer the property and about the provision of construction services, the decisive factor for the assessment is whether the overall circumstances show the will of the contracting parties that the subject matter of the acquisition process is to be the developed property. Indicators of such a will of the contracting parties are, for example


    [*]the linkage in the contract text,
    [*]the consolidation of the agreements in one document, or
    [*]an overall price.

In such a case, the subject matter of the acquisition process is the developed property (cf. BFH ruling of 13.04.1983 - II R 53/81).

If two or more contracts exist, they are to be considered as a unit if they are explicitly dependent on each other. This also applies without explicit linkage of validity if, according to the will of the parties, they are so interdependent that they are to "stand or fall" together. Whether this is the case is to be determined taking into account the interests of the contracting parties, their behavior before and at the time of contract conclusion, and the actual sequence of events (BFH rulings of 13.08.2003 - II R 52/01 and of 21.09.2005 - II R 49/04).

Objectively Close Factual Connection
An objectively factual connection between the purchase contract for the property and further agreements leading to the assumption of a uniform acquisition object exists, among other things, if the buyer at the conclusion of the purchase contract was no longer free in his decision about the "whether" and "how" of the construction measure toward the seller and it was therefore established that he would only receive the property in a certain (developed) condition. This can result from a certain chronological sequence of the contracts or from a factual constraint (cf. BFH ruling of 30.08.2017 - II R 48/15, BStBl 2018 II p. 24, with further references).

Prepared Course of Events
Furthermore, an objectively close factual connection may exist if a prepared course of events is accepted. A prepared course of events is assumed if the property seller offers the interested party, on the basis of a concrete and nearly construction-ready preliminary planning, certain construction services on a specific property at a basically fixed price and the interested party can only accept or reject this offer as a whole. For this assessment, it is irrelevant whether the preliminary planning was substantially influenced or even initiated by the buyer (cf. BFH ruling of 21.09.2005 - II R 49/04) or whether the offer is accepted with minor deviations (cf. BFH ruling of 03.03.2015 - II R 9/14).
 

11ant

2023-10-27 01:46:38
  • #3

The burden of fulfilling this obligation was essentially part of the purchase price of the land and is logically to be taxed as part of the price. The price of the house is a sufficiently suitable auxiliary measure for estimating the value of this burden.

If you cooperate sluggishly, the next request will come with a deadline including the threat that, after expiry, an estimate will be accepted as a substitute.
 

schubert79

2023-10-27 06:50:17
  • #4
Off to the lawyer. The circumstances, as described by you, are not exotic!
 

drno1234

2023-10-27 06:59:37
  • #5

I also know this text. Nevertheless, it does not provide sufficient information for my case because
1.) I did not have a concrete contract with the general contractor to which I could link. Only a general reference was made to a contract for the construction of a semi-detached house, which did not apply directly to me, since I only concluded another contract for the construction of a semi-detached house afterwards.
2.) No building permit was available.
3.) No timeline existed.

Therefore, I was free to decide WHEN (I could also have built two years after the neighbor) and HOW (there were significant changes to the design) I build my semi-detached house on the property.
The question of WHETHER is more difficult to answer. Theoretically, I could also have sold the property again after x years without building.
 

cschiko

2023-10-27 07:56:45
  • #6
So here no one can really give you advice anyway, or rather, so far the assessment of your situation has been quite contradictory. And I can certainly share that, since the contract does indeed mandate the construction with a fixed general contractor. However, ultimately classifying the whole thing legally correctly or finding points that argue against a tied transaction would probably be the job of a specialist lawyer.

More than filing an objection with the appropriate reasoning will hardly be left to you at first, and if in doubt, it will have to be settled in court. However, you can also see from other rulings that it is not entirely unlikely that your constellation is indeed considered a tied transaction and that you therefore have to pay the real estate transfer tax on the house as well. In fact, the contract does tie the purchase of the land to the house construction.
 

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