The legislator has realised this and is lifting the special loss offsetting restrictions for forward transactions or losses from bad debts in private assets again (cf. BT Drs. 20/13419). Existing loss carryforwards from forward transactions and bad debts can thus be offset against all income from capital assets without restriction. Existing loss carryforwards from forward transactions and bad debts thus become "good" losses and are immediately available for offsetting against all income from capital assets (cf. BT Drs. 20/13419, p. 234).
Major criticism and case law
The major criticism of these loss offsetting restrictions had now also reached the courts. The Federal Fiscal Court ("BFH") had ruled Resolution of 07/06/2024 There are also constitutional concerns, at least with regard to the special loss offsetting group for forward transactions.
Continued restriction on loss offsetting for share transactions
Unfortunately, the legislator has not landed a major coup and has also abandoned the much-criticised restriction on loss offsetting for share disposal losses that has been in place since 1 January 2009. It is also incomprehensible why share transactions by private investors should be subject to a separate "bad" loss utilisation. The BFH also had corresponding concerns in this case and had already referred the question of the constitutionality of the loss offsetting restriction for share disposal losses to the Federal Constitutional Court in 2020 (cf. TXGT blog from 11/06/2021).
Dr Tobias Stiegler is a tax and capital market expert at TAXGATE, a tax law firm specialising in transactions, investments and tax compliance.
