In a ruling, the Federal Fiscal Court (Bundesfinanzhof, BFH) has clarified that a contractual allocation of the purchase price may not be replaced by a calculation in accordance with the Excel tool of the Federal Ministry of Finance (Bundesministerium für Finanzen, BMF).

Background

The BMF’s Excel tool is used to determine the assessment basis for the depreciation of buildings pursuant to Section 7 (4) to (5a) of the Income Tax Act. It enables the total purchase price for a developed property to be divided into land value and building value for depreciation calculation. The supreme tax authorities of the federal and state governments regularly provide this working aid in order to carry out the apportionment themselves in a standardized procedure or to check the plausibility of an apportionment already made.

Facts

In the case at hand, a real estate community had acquired a small apartment (less than 40 sqm) in a building on a large property in a German city. The notarized purchase agreement stipulated that 18.18% of the purchase price was for the value of the land. The plaintiff used this apportionment on her tax return. The tax office, on the other hand, determined a building share of about 30% and did not accept the contractual apportionment.

The Berlin-Brandenburg Fiscal Court dismissed the action against the application of the BMF working guide in its ruling of August 14, 2019 (Case No. 3 K 3137/19). It argued that the contractual apportionment in the specific case did not reflect the actual value ratios and thus agreed with the tax office, which considered the BMF Excel tool to be suitable in principle for determining the value.

In an appeal procedure, the BFH had the opportunity to clarify the fundamental question of whether the working aid provided by the BMF can be used to calculate depreciation when apportioning a contractually agreed purchase price for land and buildings. The BFH requested the BMF to participate in the proceedings.

Decision of the BFH

The BFH ruled on July 21, 2020 (Case IX R 26/19) that a contractual apportionment that does not correspond to the real value ratios may not be replaced by the BMF Excel tool. He emphasized that the job aid could not ensure an adequate distribution. In such a case, an expert opinion of a publicly appointed and sworn expert for property valuation is to be obtained. The judgment of the Berlin-Brandenburg Fiscal Court was reversed and the case was referred back for a new hearing. This ruling underscores the importance of realistic valuation when apportioning purchase prices for land and buildings for tax purposes.

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Sources: BFH, Haufe

Photo: Leon Seibert (Unsplash)

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