GrEWSt upon the withdrawal of a partner in a GbR partnership
July 17, 2011 | 35,00 EUR | answered by Michael Herrmann
Facts: Two partners (life partners) establish a GbR for the purpose of purchasing and operating a property. A holds 96% and B holds 4% of the partnership shares. It is agreed in the GbR contract that in case of one partner's termination, the shares will be transferred to the other partner. The original real estate transfer tax assessment is issued to the GbR. After 12 months, the relationship breaks down, B terminates and leaves the partnership. The GbR continues to exist, with A now holding 100% of the shares.
Does this transaction fall under real estate transfer tax, or is it a real estate transfer tax-free transfer, as A has held "at least 95%" of the shares in the GbR from the beginning? If real estate transfer tax is applicable, to what extent will real estate transfer tax be incurred?
Dear inquirer,
First of all, thank you very much for your inquiry, which I am happy to answer based on the information provided and considering your involvement in an initial consultation. The response is given in accordance with the description of the situation. Missing or incorrect information about the actual circumstances can affect the legal outcome.
The transfer of shares free of real estate transfer tax is only possible if, in the case of merging company shares, less than 95% of the shares are held by one party. Since 96% of the shares are already held by A, the transfer cannot be considered a tax-free transaction under § 1 para. 3 GrEStG. The transfer is subject to tax in accordance with § 5 para. 1 GrEStG, to the extent that the joint estate A was not previously the owner (4%).
I hope that these details have provided you with a sufficient overview of the situation within the scope of your involvement and this initial consultation.
Kind regards,
Michael Herrmann
Dipl.-Finanzwirt (FH)
Tax Advisor
