Gift tax: Aunt gives nephew a multi-family house, retaining the right of usufruct.
I have already obtained a first overview of the tax situation. I describe my 'solution' and ask the reviewer to incorporate the text in the response (to copy), go through question marks for question marks, and if the representation is correct, replace the question marks with periods or (yes!) Or similar, otherwise add restrictions, as far as they seem appropriate here, and comments, or correct any errors. It also matters to me about the practice of tax offices, not just textbook answers.
The childless, unmarried Aunt T wants to structurally optimize the (mixed?) gift of a externally rented apartment building, burdened with a mortgage, and with a (reserved?) usufruct to her nephew N1 in 2016. Neither T nor N1 have been dependent on the income or ownership or sale proceeds from the apartment building for years, both are aware of the fact that a usufruct relationship restricts disposal options for years and leads to dependencies, possibly clouding the relationship.
Property value: The apartment building is located in an area where this type of development is typical. The property value s1 is the last available (?) land value determined by the Expert Committee for this type of building and this address (or the land value from the year mentioned in the Inheritance Tax Act?) times the area according to the land register excerpt.
Income value: The house was purchased a long time ago and has not been appraised for mortgage or insurance purposes in recent times. (If these values are less than about 3 years old, could they be used as market values s1+s2?) T does not want to incur costs for a (comparison) appraisal. The house is over 80 years old and was modernized in 1958. Aunt T has tolerated a maintenance backlog for several years. Possibly because of this, the house is only 2/3 rented out and the achieved cold rent/sqm in the rented apartments averages 85% of the average value for this residential area and age class (according to the rent index). The age class is estimated based on the criteria in the rent index. For an apartment building, a useful life of 80 years is regularly assumed(?), therefore, to calculate the income value, a remaining useful life from the modernization until 2038 is assumed, in 2016, this would be 22 years. (If the remaining useful life is short, or even if the house is unmodernized and older than 80 years, I see a different remaining useful life in the appraisal reports for forced sales; according to ImmoWertV §6, which is (yes? no?) applicable here (or can be applied analogously?) neglected maintenance would lead to a reduction in the remaining useful life, in this case, a reduction of the remaining useful life from 22 years to 20 years could be justified without much effort. For the purposes of this income value calculation, a interest rate of 5.5% is always assumed(?), resulting in a multiplier of v(20)=12.28 according to Annex 9a to §13 BewG(?).
If, as in this case, actual data on income from the income tax return are available, it is not necessary (?) or common (?) to apply generalized calculation methods, e.g. based on average rental income from comparable properties and average ratios for management costs according to the age of the building(?) Therefore, at least in practice(?), no proof of 'proper' management needs to be provided(?)
Gross income is the average(?) of rental income without income for ancillary costs for the last three(?) years, management costs are the difference between expenses and income for ancillary costs, loan interest, maintenance expenses, and 'other', so all advertising costs except depreciation. These values are derived from the income tax Attachment V&V of T's house for the last available(?) three years. Also deductible as management costs is the time spent, the working time of T for property management for this property(?). This item can be estimated(?) (and how can it be done if necessary?)
The building value s2 according to the income value method is the net income (gross income-management costs) multiplied by the multiplier, here v(20)=12.27.
Capital value of the usufruct s3: Here I am unsure about the solution: The average life expectancy of T is 30 years according to the relevant (?) life table 2009/2011(?) of the Federal Statistical Office for women, the corresponding multiplier v(30) is 15. The annual net income for the usufruct is likely to be determined by the same method as for the building value, even if the method I applied earlier is incorrect. Therefore, s3 is the net income times the multiplier 15.
Can the value of the usufruct s3 exceed the building value s2? Can it exceed the value of
