Rating SFH
September 16, 2010 | 50,00 EUR | answered by Michael Herrmann
Hello!
The tax office is calculating the value of the inherited property much too high according to §§ 180ff BewG, because essential aspects (such as location in the airport flight path, highway noise, bus line at the door + extensive renovation needs) are not being taken into account.
Explanation: Since it is a standardized procedure, these aspects cannot be considered...
Is this correct?
If so, how can a more specific/nearer-to-reality valuation be enforced?
Greetings
Dear inquirer,
First of all, thank you very much for your inquiry, which I would be happy to answer based on the information provided and in the context of your initial consultation. The response is based on the description of the situation. Missing or incorrect information about the actual circumstances can affect the legal outcome.
According to the amended valuation law, the value of developed properties is determined using the comparative, income, or asset value methods depending on the type of property. The design of the valuation methods is based on the valuation procedures of the Valuation Regulation, which have been modified for tax mass valuation through typification and generalization.
The fair value according to § 9 BewG must be used in the valuation of real estate. This corresponds to the market value according to § 194 BauGB. According to this provision, the market value is determined by the price that would be achieved in the ordinary course of business at the time of the valuation, based on the legal circumstances and actual characteristics, other conditions, and the location of the property or other object of valuation, without considering unusual or personal circumstances.
Resorting to typifying valuation methods can lead to valuation results in exceptional cases that exceed the actual property value (market value), triggering overvaluation (excessive taxation in inheritance and gift tax). Therefore, the legislator has also anchored an opening clause in favor of the taxpayer in § 198 BewG in the reformed valuation law, through which the taxpayer can prove - mere plausibility is not enough - that the fair value (market value) of the economic unit at the time of taxation is lower than the value determined according to the tax valuation provisions - so-called market value evidence. According to § 198 sentence 2 BewG, the provisions issued under § 199 (1) BauGB generally apply for proving the lower fair value; thus, the valuation methods mentioned in the Value Regulation (comparative value method, income method, asset value method) must be observed for market value evidence. In addition, the Value Ordinance must be consulted. Even under the new law, market value evidence through a recent purchase price, an expert opinion from the locally competent expert committee, or a real estate appraiser is permissible.
According to Section 43 (3) sentence 1 AEBewGrV, a successful market value proof usually requires an expert opinion from the locally competent expert committee or a real estate appraiser.
In addition to the expert opinion evidence, a purchase price concluded in the ordinary course of business within one year before or after the taxation date can also serve as evidence of the lower fair value (market value) of the property to be evaluated (Section 43 (4) AEBewGrV). The jurisprudence has extended the aforementioned one-year period under certain conditions (BFH, judgment of July 2, 2004 - II R 55/01, BStBl 2004 II p. 703). Therefore, if a purchase price was concluded outside of this period in the ordinary course of business and the relevant circumstances have remained unchanged compared to the valuation date, this purchase price can also serve as evidence of the lower fair value according to administrative practice.
I hope that these explanations have provided you with an initial overview of the situation in the context of your inquiry and remain
Yours sincerely
Michael Herrmann
Dipl.-Finanzwirt (FH)
Tax advisor
