The Berlin-Brandenburg Fiscal Court ruled on 14 August 2019 that this guide is a suitable tool for properly allocating the purchase price when acquiring property. This decision is of considerable importance in practice.
In the case in dispute, the plaintiff had acquired a one-room flat or a co-ownership share of 39/1000 in the property and, according to the notarised purchase agreement, a share of 18.18 % of the purchase price was attributable to the pro rata value of the property. The plaintiff based its tax return for the year in dispute on this amount. The tax office did not support this view, but rather carried out a new calculation based on the working aid. This resulted in a purchase price share of only % 27.03 for the building and % 72.97 for the land.
In its complaint, the plaintiff asserted, among other things, that according to the case law of the Federal Fiscal Court, the purchase price allocation made in the purchase agreement was decisive for determining the building depreciation. The Federal Fiscal Court had consistently ruled that the purchase price allocation made in the purchase agreement must also be used as a basis for taxation (BFH, IX R 12/14, BStBl II 2016, 397; IX R 35/08, BStBl II 2009, 663; etc.). Although the buyer is typically interested in a higher acquisition value of the building with regard to his depreciation entitlement and the corresponding apportionment agreement - in favour of the seller - may have an influence on other contractual arrangements that are positive for him, this does not generally justify a different allocation (BFH, IX R 12/14, BStBl II 2016, 397).
The tax court has now ruled that the contractual purchase price allocation does not adequately reflect the real value ratios. The specific arguments put forward by the plaintiff in this regard were not convincing. Therefore, the purchase price allocation was to be estimated in accordance with the principles of BFH case law. In this respect, the BMF's working aid formed a suitable basis for determining the value, in particular the material value of the building. The results determined in accordance with this are also of great indicative significance in order to refute the market appropriateness of the contractually agreed purchase price allocation in the event of significant deviations. As a result, the action was unsuccessful.
In this context, see also: Hamburg tax court, 3 K 73/18
