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FG Nuremberg · Judgment of October 16, 2014 · Case No. 4 K 1059/13

§ 6a Real Estate Transfer Tax Act - Tax relief for restructuring within a group

1. The decision of August 13, 2013, is amended to state that the real estate acquisitions realized through the merger according to the annex to the decision (Serial No. 1 - 6.) are tax-privileged to an extent of 100 percent according to § 6a sentence 1 GrEStG. 2. The costs of the proceedings are to be borne by the tax office. 3. The judgment is provisionally enforceable due to the expenses to be reimbursed to the plaintiff. The tax office may avert enforcement by providing security in the amount of the plaintiff's reimbursable expenses, unless the plaintiff provides security in the same amount prior to enforcement. 4. The appeal is permitted. Decision The involvement of an authorized representative for the preliminary proceedings is declared necessary. Facts The dispute concerns the retention period of § 6a S. 4 GrEStG. I. The plaintiff is an active stock corporation with a share capital of xxxx euros, holding shares in more than 20 different companies of the "A" group (mostly 100 percent shares). This includes the active "B-GmbH", in which the plaintiff has been directly involved for more than five years at least 95 percent or 100 percent and with which a profit transfer agreement existed; the "B-GmbH" owned several properties located in the districts of financial offices 2 and 1. The B-GmbH was in turn 100 percent involved in "C-GmbH", with which a profit transfer agreement existed; this company did not own any real estate. Reference is made to the organizational chart of A (as of December 31, 2011, sheet 12 of the FA file). By notarial deed dated August 1, 2012 (URNr. A xxxx/2012, Notary, 3), B-GmbH as the transferring legal entity concluded a merger agreement with the plaintiff as the acquiring legal entity, according to which the transferring legal entity transfers its assets as a whole with all rights and obligations by dissolution without liquidation according to § 2 No. 1 UmwG to the acquiring legal entity (merger by absorption). The effective date of the merger was January 1, 2012, 0:00 AM. The shareholders' meeting of the transferring company approved on August 28, 2012, and the merger was registered in the commercial register on September 24, 2012. About 15 of the companies were included in A's consolidated financial statements as of December 31, 2012, including C-GmbH; with this company, a profit transfer agreement and tax groupings (corporate tax, trade tax, VAT) existed. Reference is made to the organizational chart of A (as of December 31, 2012, sheet 11 of the FA file). II. The notarial deed of August 1, 2012 (URNr. A xxxx/2012) was received by the tax office 2 on February 7, 2013. With a notice dated June 7, 2013, the tax office separately determined the tax bases for real estate transfer tax according to § 17 para. 3 no. 1 GrEStG and declared the recorded real estate acquisitions as not tax-privileged; the notice was issued subject to review and provisionally regarding the question of whether the tax is to be assessed according to § 8 para. 2 GrEStG (§ 17 para. 3a GrEStG). The objection procedure was unsuccessful. During the lawsuit proceedings, the tax office followed an application by the plaintiff dated August 5, 2013, with an amended notice dated August 13, 2013, and corrected the recorded real estate acquisitions according to the annex to the notice; the amended notice was also issued subject to review and provisionally. The plaintiff seeks to: • amend the notice on the separate determination of tax bases for real estate transfer tax dated August 13, 2013, to grant the tax privilege according to § 6a GrEStG for the real estate acquisitions realized through the merger of B-GmbH onto the plaintiff; • in case of defeat, permit the appeal.
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Tags: § 6a GrEStBFH II R 62/14FG Nürnberg 4 K 1059/13Grunderwerbsteuer

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