Does the speculation tax trigger the right of first refusal?
April 23, 2012 | 30,00 EUR | answered by Michael Herrmann
The situation is as follows:
Person A wants to sell a condominium.
The notarial purchase contract was signed on 21.11.2002, so the speculation period ends on 22.11.2012.
Person B lives together with Person C in the apartment.
The rental agreement is solely in Person B's name.
Person B and C want to purchase the apartment together on 22.11.2012, but they want to invest in furniture etc. now.
It was verbally agreed with the seller that the apartment will be sold to B and C on 22.11.2012 for a fixed amount.
To secure this verbal agreement, a right of first refusal will be registered exclusively for C.
Question: Could this right of first refusal for C lead to Person A having to pay speculation tax?
Please also note that C is already living in the apartment and the apartment is being purchased jointly by B and C.
Please provide a legally binding answer.
Dear inquirer,
First of all, thank you very much for your inquiry, which I am happy to answer based on the information provided and in the context of your commitment to an 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.
For the start of the speculation period according to § 23 EStG, the decisive factor in the sale of real estate is generally the time of the obligatory legal transaction. This is the notarized purchase contract.
Only exceptionally does the period begin earlier, namely with the economic completion of the acquisition. However, such completion is not given by an agreement of a right of first refusal or an oral promise of transfer of ownership. A preliminary contract with potential buyers is therefore possible.
The legal situation is secured by the case law of the Federal Fiscal Court.
I hope that these explanations have given you a sufficient overview of the situation within the scope of your commitment and this initial consultation and remain
Yours sincerely
Michael Herrmann
Dipl.-Finanzwirt (FH)
Tax advisor
