If assets within a family are distributed unequally between the spouses, the so-called Marital property swing Assets can be transferred free of gift tax from the economically more successful spouse - often the husband - to the economically less successful spouse - often the wife, who takes care of the children and the household.
This works if
- the spouses in the matrimonial property regime of Community of accrued gains live and
- one spouse has earned more than the other during the marriage.
Then the Change of matrimonial property regime from the community of accrued gains to the separation of property, the equalisation of accrued gains is triggered. Since the equalisation claim of the (stereotypical) wife against the (stereotypical) husband has its legal basis in family law and is therefore not generous, this is not a gift in the sense of inheritance tax. The Wife securedwhich Liability risks optimised within the family and the gift tax rules are Allowances of the children for future gifts from both parents.
But CautionThe equalisation claim is for money. If an object such as a property or a GmbH shareholding is transferred instead, the equalisation claim is for money. Income tax one Disposal of this subject matter, which Taxation of profits of the hidden reserves.
The Federal Fiscal Court (BFH) recently dealt with such a case. With Judgement of 9 May 2025 (IX R 4/23), it ruled that the tax on the capital gain can be retroactively waived if the transfer is reversed due to an error regarding the tax consequences and this error formed the basis of the contract. In the case in dispute, the plaintiffs agreed to amend the notarised agreement on the separation of property and stipulated a cash payment instead of the transfer of shares.
The tax court recognised the retroactive change of the marriage contract. The capital gain was cancelled with tax effect for the past. The BFH confirmed the view of the lower court: The Reversal can be treated for tax purposes as if the share transfer had never taken place if the Error is shared by both contracting parties, it already existed when the contract was concluded and falls within the sphere of risk of both contracting parties. The couple received tax advice and relied on the - incorrect - statement that no income tax would be payable on the transaction. A Liability case for the tax consultant and luck for the couple with regard to the error!
The case could therefore be "repaired". However, the BFH points out that the conditions for recognising a retroactive amendment to corresponding contractual agreements for tax purposes remain strict and only apply to Exceptional cases apply.
You should therefore seek advice from competent tax advisors and lawyers in such cases. Preferably from TAXGATE. Lawyer and tax consultant Markus Schenk is an expert in succession planning in Stuttgart and will be happy to answer any questions you may have.
