You own a German commercial property which you lease to your own operating company. The company will continue to operate, but you want to sell the land. At first glance only the difference between the old and the new building price is considered. In the case of a possible Betriebsaufspaltung (split between ownership and operating businesses) this isolated view, however, can overlook important points for examination.
Disclose the existing relationship in full
Our editorial recommendation: compile property ownership, the usage agreement, shareholdings and actual power relationships. State which assets are being provided and what is intended to run differently after the sale. A contribution does not automatically establish a Betriebsaufspaltung solely because of a shareholding.
Existing tax classifications and subsequent changes belong in the same file. A long-used private label such as “mein vermietetes Haus” does not replace the professional classification. The examination needs the actual circumstances before and after the planned sale.
A historical case shows the possible scope
In the judgment X R 14/11 of 22 October 2013 the BFH dealt with an existing Betriebsaufspaltung. The sale of all properties provided to the operating company led in the decided case to its termination and to the cessation of the business of the holding company. Assets still remaining, including the company shareholding, were also affected. [BFH-XR14-11]
The decision concerns an older individual case. It is used here as a concrete reason for examination, not as a complete contemporary course of action. § 16 EStG governs the current statutory starting point for disposal and cessation of a commercial business; its individual application and further rules must be assessed separately. [ESTG-16]
Do not mentally merge two businesses
The fact that the operating company continues to handle orders unchanged does not by itself determine the tax treatment of a holding company that may exist in parallel. Have the advice explain for each factual role what the sale changes.
Therefore also include the asset positions that remain after the sale. The article does not calculate hidden reserves and does not determine an automatic transfer of a specific item. The point is not to limit the required examination to the visibly sold building.
An imagined sale without an intended company exit
An owner wants to sell the building to an independent investor. His own GmbH is to continue working there under a newly designed use. He therefore assumes that, for tax purposes, nothing changes apart from the land profit.
He has the complete previous and planned relationships checked before making a binding decision. The specialist answer may deal with items that are not intended to be transferred in the property purchase agreement. Such a consequence is not excluded by the fact that it was not envisaged in the private sales objective.
Only plan the proceeds after the full review
Have the possible tax and financial consequences calculated concretely. If this limited text does not claim to be exhaustive about special cases, it remains visible as a task for examination. The sales decision is then based on the entire factual structure rather than solely on the property price and a continuing GmbH.