In a further case, the BFH confirmed its restrictive interpretation of Section 9 no. 1 sentence 2 GewStG in its judgement of 11 April 2019 (case no. III R 36/15) and excluded the extended reduction of trade income if a corporation that manages real estate also rents out equipment that qualifies as operating equipment in addition to its building rental.
In the case in question, a limited liability company managing real estate had also rented out equipment (beer cellar cooling system, cold storage rooms, refrigeration units for bar and buffet facilities) in addition to a hotel building.
The activities permitted but not favoured in addition to the asset management of real estate are listed exhaustively in § 9 no. 1 sentences 2 and 3 GewStG (BFH, VIII R 3/03). The term "real estate" is also to be understood (in contrast to income tax law) in the narrower sense of valuation law (established case law). Accordingly, real estate includes the land, buildings, other components and accessories, but not machines and other devices of all kinds that are part of a business facility (business equipment), even if they are essential components.
In the opinion of the BFH, assets such as beer cellar refrigeration systems, cold rooms and refrigerated furniture for counters and buffets also constitute operating equipment in the present case. This is because the object of a hotel's business is, among other things, to serve hotel guests with chilled drinks and other food, if necessary, the storage of which requires storage in refrigeration systems and furniture. The actual business operation of catering would not be feasible without such facilities.
The BFH had decided differently (IIII R 118/79, judgement of 12 August 1982) that the bathrooms and showers installed in a hotel were part of the valuation unit of the building and therefore did not qualify as independent parts of the building in the form of operating equipment. The decisive differentiation criterion in this decision was the question of whether there is a direct and special connection between the facility to be assessed and the business carried out in the building (which argues in favour of the existence of a business fixture) or whether the facility serves the use of the building as such - i.e. independently of the business carried out in the building (which argues against the existence of a business fixture).
