Operational separation through establishment in one's own home
January 24, 2022 | 50,00 EUR | answered by Steuerberater Bernd Thomas
Topic operational spin-off
I am a new freelancer with an engineering office and work from my own home. Now I am planning to move the office in the basement to the attic apartment with 100 sqm (currently vacant) in order to continue to grow. My wife and I live in the apartment below. We both own the residential property, consisting of two apartments (declaration of division available) each with 1/2 ownership.
Now I am wondering what options there are to prevent a possible operational spin-off, since as a sole proprietor the apartment with 1/2 ownership would be considered business assets. Could a gratuitous transfer of the apartment be a solution? What solutions would make sense in this case? Transferring ownership to my wife would not be a problem for me.
Alternatively, I would be willing to rent something, but so far I have not been able to find such a small rental space in the area. So one more question: If I want to convert the sole proprietorship in my own home into a GmbH (limited liability company), what else should be considered? Any pitfalls?
Best regards
Dear questioner,
I am happy to answer your inquiry based on the information provided in the context of an initial consultation on frag-einen.com. The response will be based on the information you have provided. Missing or incorrect information may affect the legal outcome.
It is possible that existing business assets may already be classified as business assets in the case of self-employment through the current home office.
If you intend to rent an office or commercial space to the GmbH in the future, it is important to consider whether the conditions for a split business operation are met.
According to current case law, almost every commercially used property or building is considered a significant business asset. It is sufficient if the property is of not just minor importance for the operation of the company. Even rooms used as the sole office (headquarters) in a single-family house can be considered a significant business asset, even if they are not specifically set up and designed for the purposes of the business enterprise, at least if the part of the building does not fall below the limits specified in § 8 EStDV (H 15.7 para. 5 EStH 2018 - Significant business asset - Single-family house).
In cases involving spouses (50% co-ownership of property, GmbH solely owned by one spouse), a split business operation frequently does not exist, cf. R15 EStR and corresponding EStH.
Best regards,
Bernd Thomas
Tax advisor
Information according to DL-InfoV: Tax advisor Dipl.-Kaufmann (FH) Bernd Thomas, tax advisor, Jöhrensstraße 1, 30559 Hannover, member of the Tax Advisor Chamber of Lower Saxony, membership number 146580, professional liability insurance with R+V Allgemeine Versicherung AG, Mittlerer Pfad 24, 70499 Stuttgart, insurance sum: 250,000 euros per individual claim; annual maximum benefit: 1,000,000 euros (for all damages in an insurance year); the professional regulations apply, especially the Tax Consultancy Act (StBerG), implementing regulations for the Tax Consultancy Act (DVStB), professional code (BOStB), Tax Advisor Fee Regulation (StBVV) (regulations can be viewed at: https://www.berufsrecht-handbuch.de/, http://www.gesetze-im-internet.de/stberg, www.gesetze-im-internet.de/stbvv/), the professional title of tax advisor was awarded in the Federal Republic of Germany.
