Separate the property and the rental activity
§ 1 Absatz 1a UStG governs the non-taxability of a transfer of a business as a going concern to another entrepreneur for that entrepreneur’s business under the conditions described there. [USTG_1980-1] The article does not automatically categorise every sale of a let property as such.
Our editorial recommendation: Record the existing and planned contractual relationships with their actual parties. Who is letting to the users before the sale? Who is intended to do so afterwards? Which agreements transfer on which examined basis, which are newly concluded?
What a decided interim letting case shows
In its decision V R 12/13 of 3 July 2014 the BFH denied a transfer of a business as a going concern in a constellation where the seller relet the transferred object and continued the letting to the previous tenants herself. The court focused on the activity that was actually continued and the absence of a transfer of the business. [BFH-VR12-13]
This is a historical case with its own contractual design and a year of dispute at that time. It is not to be used as a finished result for your sale today. It shows which assumption must be specifically examined before the price and contract decision.
An imagined change of ownership without change of external letting
A company wishes to dispose of an object. It is to rent the whole object from the new owner afterwards; its previous leases with the users are to remain with it unchanged according to the plan. In the first draft, however, it nevertheless only states “existing letting business will be transferred”.
It provides the complete contractual plan to the tax advisers. They examine the actual transfer, continuation and treatment. A single heading is not used to assert an activity that deviates from the contractual plan.
Derive price consequences only from the concrete classification
Which VAT, option and possible input tax questions arise is examined case by case. The article does not calculate a quota, an adjustment or an automatic refund. The figures from the court decision at that time are not a present‑day sales model.
Professional review and contract drafting should receive the same planned variant. If the back‑lease changes or other tenancies are to transfer after all, this is a factual change of the examination basis.
Record the result clearly
Note the confirmed tax classification with its concrete prerequisites and any outstanding points in the associated draft version. This keeps clear who takes on which activity. A change of ownership and a continuing rental payment are not silently conflated into an alleged complete transfer of the business.