Loss offsetting of securities between spouses
March 18, 2012 | 25,00 EUR | answered by Oliver Burchardt
I incurred significant losses on securities (certificates, stocks, and funds) in the years before 2008 (sold within one year).
These losses were reported and carried forward in the tax return.
As far as I know, these losses can still be offset against new capital gains on securities until the end of 2013.
My question is: Can these losses also be offset against capital gains of my wife (joint assessment) if I do not have any gains to offset myself?
Dear inquirer,
Thank you for your inquiry, which I am happy to answer as part of an initial consultation.
Please note that the tax assessment is based on the information provided. Adding, changing or omitting information may alter the result, possibly significantly.
According to § 26b EStG, jointly assessed spouses are treated as one taxpayer at the income level. The question of whether losses of one spouse can be offset against the profits of the other spouse has not yet been decided by the courts. However, for loss deduction under § 10d EStG, it is generally agreed in the literature that the losses of one spouse can be offset against the other spouse. I cannot see why something else should apply for loss offset in stock transactions.
Therefore, you should apply to the tax office to offset your losses against your wife's profits.
Whether the tax office will approve this request or hold a different legal opinion, I cannot say with certainty. You may need to enter into a legal dispute with the tax authorities. However, you do not need to make this decision now.
Best regards,
Oliver Burchardt
Tax Consultant
