House construction with residential unit and photovoltaic system
August 21, 2015 | 35,00 EUR | answered by Anton Pernitschka
Financing is on both spouses. The husband is the sole owner in the land register.
Bills for the construction of the house are mostly in both spouses' names, with some only in the husband's name.
First question: Can only the husband act as the landlord of the granny flat, so that only he earns rental income, and can all advertising costs still be deducted, even though the interest payments and many bills are in both spouses' names?
The invoice for the installation and purchase of the photovoltaic system is in both spouses' names.
Second question: Can the husband also operate this alone, thus appearing as a sole proprietorship to the tax office and still be able to claim the full VAT and advertising costs (if he waives the small business regulation), even though the interest payments and the invoice are in both spouses' names? (The operator has not yet registered the system, and it would then only be registered in the husband's name)
The reason for this is that the wife may only work part-time after parental leave and there could be issues with family insurance at the health insurance company if there are income-related problems.
Dear inquirer,
In the context of an initial consultation and your fee commitment, taking into account the regulations of this forum, I would like to answer your questions.
If rental expenses are paid from a joint account or from jointly borrowed funds, it does not matter which spouse has financially borne them. They are always considered to have been spent on behalf of the owning spouse and are therefore tax deductible (Federal Fiscal Court rulings of 02.12.1999 - IX R 45/95 and IX R 21/96).
In the present case, only the husband can act as the landlord of the ELW and still deduct all advertising costs. However, it should be noted that the interest deduction should be taken into account, as the loan is taken out jointly.
Operating a photovoltaic system is to be assessed as a commercial operation for tax purposes. In this case, the entrepreneur must be identified. If only the husband is the entrepreneur, only his (possibly proportional) operating expenses can be deducted for tax purposes.
If the husband acts as a VAT-registered entrepreneur, it is necessary for all invoices to be issued in the husband's name in order to deduct input tax.
The response was provided based on your description of the situation. Missing or incorrect information about the actual circumstances can affect the legal outcome.
Yours sincerely,
Anton Pernitschka
Tax consultant
