Replacement assessment limit for old facilities
December 17, 2010 | 30,00 EUR | answered by Oliver Burchardt
Dear Sir or Madam,
In 1997, I purchased preference shares at my local bank. I did not receive a purchase receipt, or it is no longer available in my records. The preference shares have been held in the same account since the purchase (there has been no change of banks or other transfer).
Now, the preference shares are due on 31.12.2010 and are to be paid out. The bank now wants to deduct the 30% replacement assessment base, as they claim to not have access to purchase documents for securities that are older than 12 years.
Can the bank behave in this way, even though they should know the price and acquisition date as the seller?
Is there a kind of replacement document that the bank can use to confirm that the investment was purchased before 01.01.2009?
Thank you for your response.
Dear inquirer,
Thank you for your inquiry, which I would like to answer as part of an initial consultation.
In my opinion, the bank cannot apply the replacement assessment basis in your case. § 43a para. 2 sentence 7 ff. EStG stipulates the use of the replacement assessment basis when the acquisition costs cannot be proven. However, this mainly refers to cases where transfers of securities accounts between different banks have been made by you. This is clearly stated in the reasoning of the legislative proposal (BT-Drucksache 16/4841, p. 67).
According to § 43a para. 2 sentence 2 EStG, the bank is even required to calculate the withholding tax on capital income if it has held the securities since acquisition. In this case, it must necessarily use the acquisition costs. Therefore, it is already legally obliged to keep the corresponding documentation and cannot rely on the duration of the investment.
However, you are responsible for proving that the securities have not been transferred by you. If you can provide this evidence, the bank may not use the replacement assessment basis.
However, the use of the replacement assessment basis would not be a problem if you can prove the acquisition costs to the tax office in a different way. You can claim back the excess tax withheld in your income tax return. However, since you probably also do not have any documentation available, this route may be blocked.
I hope my explanation has been helpful to you.
Kind regards,
Oliver Burchardt
Tax advisor
