Supreme Administrative Court on the transfer of a usufruct for a fee

In the case of the granting of a Usufruct receives the Fruit eater the real right Law, a foreign object, often property of a third party, without any restriction and under Preservation of the substance to use. The Fruit enjoyment buyer remains civil The Owner. If the establishment of a usufructuary right is tax-efficiently structured, then in the case of Beneficiary of usufruct fruit beneficiary, where he the Property to let, to Income from rental and leasing. Apart from the concession of the usufructuary right, it was previously Unclear looks like Tax situation when selling a usufruct right for a fee ordered.

The Financial administration previously held the opinion (para. 115a of the Income Tax Guidelines) that in the case of an onerous transfer of a usufruct right to a third party - comparable The Subletting through a main tenant - the Transfer fee generally the Income from rental and leasing to be assigned. This opinion was reinforced by a Insight des Supreme Administrative Court from 2010 (file reference 2009/15/0046 of 21.12.2010). In this case, a mother had transferred a piece of land to her daughter, whilst retaining for herself Usufruct reserved. The mother subsequently transferred the usufruct to a partnership (which was also the tenant at the time) for a fee. Since the Agreement only Orally was completed and was not registered in the land register, the Supreme Administrative Court Not from one final transfer of the source of income but explained by way of justification that the transfer for consideration „in practice“took place tax-related with a Subletting by the main tenant comparable would be. The Severance payments led to the mother for tax purposes Advance rent payments, which are considered income from rent and leasing taxable were.

This opinion of the BMF contradicts Now then Supreme Administrative Court in its current decision (File reference Ra 2016/13/0029 of 31 March 2017) and differentiated between one Transmission „in practice“ and „in terms of substance“A taxpayer (hereinafter referred to as the Uncle) was the usufructuary of a property. Subsequently, he transferred this usufruct right to his niece in exchange for a lump sum payment. This transfer was by the Supreme Administrative Court also Transfer of substance“ assessed, as the uncle entirely lost the right to the tangible asset. As in the present case (after Previous legal situation (without property income tax) no speculation offence template, was Transfer fee tax-free placed.

The decision brings in principle to greater legal certainty Hi, there now clarified is that with a Transfer of a usufruct right "in substance" taxation by Rental income excluded is. The question now is whether a Taxation following the new legal situation from 1st April 2012 through die Property income tax under Section 30 of the EStG. This assessment, in turn, depends on Preliminary question or whether Transfer of a usufructuary right under the term of „Property-like right“to be subsumed. According to the previous view of the Financial administration in paragraph 6622 of the income tax guidelines is the Right to enjoy the fruits Not also Property-equivalent right to qualify. Thus, in the underlying case, the transfer of a usufruct right would be, „in substance“, also after the expiry of the one-year speculative period of § 31 EStG still tax-free. In the Literature however controversial, whether a sale of a usufruct right is, "in substance" not but also Sale one valued as property-equivalent right may become. A certain Legal uncertainty continues to exist.

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