Capital gain from the sale of a gifted property when used for personal use and also rented out at the same time.
January 29, 2016 | 50,00 EUR | answered by StB Patrick Färber
Dear Sir or Madam,
Next year, my two siblings and I will be selling a house gifted to us by our mother in 2009 (total living area 240 sqm). My mother and I have been living in this house since 1968 (3 apartments 95/95/50 sqm). Since around 1980, one apartment has always been rented out. I have been living in one of the 95 sqm apartments since 2001 (previously in the 50 sqm). From 2009 to April 2015, the 50 sqm apartment was rented out by my siblings and me (rental income was taxed), while I lived in a 95 sqm apartment and my mother was granted living rights in another 95 sqm apartment.
Now to the question: Do 1. I and 2. my siblings (who have not lived here for many years) have to pay taxes on the capital gains from the sale? Please note that I have used more than 1/3 of the house for my own residence. However, I will be moving out by the end of this year and the house sale will only take place next year.
Which gain will be taken into account? In the notarial transfer of ownership to my mother, the value was set at 100,000 €. We will definitely be selling for 150,000 €.
Yours faithfully
Dear questioner,
as the saying goes: "it depends":
If the apartments were gifted among the 3 siblings in 2009 in a way that no compensation payments for differences in value were made, then the harmful 10-year period starts from 1968 (acquisition/production by the parents). In this case, you can sell all 3 apartments as you please, without any tax consequences.
However, if compensation payments were made between the siblings during the gifting process, then a partially considerate acquisition transaction occurred in 2009. In this case, a taxable disposal transaction could be present in relation to the non-self-used apartments up to the (partial) acquisition costs. It gets more complicated in this scenario:
For example, the 50 sqm apartment could only be sold tax-free in 2018 and must be exclusively self-used until then (letting it sit empty is not enough).
If I understand your information correctly, the two larger apartments have not been rented out since 2009 and have been self-used, so a possible partially considerate acquisition transaction would not be harmful in this case. Short-term vacancy until the sale is also not harmful.
Regarding profit: Only if compensation payments have been made, the profit would be determined proportionally (e.g. 30% considerate in 2009):
EUR 150,000 = 30% = 45,000 minus 30% considerate in 2009 minus depreciation claimed!!!! The depreciation claimed within the framework of the VUV therefore increases the disposal profit!
Best regards,
Tax consultant P. Färber
