Fehn || Legal RECHTSANWÄLTE ◆ STEUERBERATER<br />
(ATTORNEYS-AT-LAW ◆ TAX ACCOUNTANT)<br />
Partnerschaftsgesellschaft mbB<br />
Cologne Duesseldorf Hamburg

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Transfer effect of losses from commercial activities

According to the Federal Fiscal Court - #Bundesfinanzhof (#BFH), #losses from a commercial activity cannot prevent the reclassification of an otherwise asset-managing activity of a Gesellschaft bürgerlichen Rechts (#GbR), if a de minimis limit is exceeded (ruling of 30.06.2022 - IV R 42/19).

With its current ruling, the #BFH confirms the legal opinion of the lower court, according to which the commercial activity had rubbed off on the asset management activity despite the #losses generated in the process. Thus, exclusively commercial income had been generated. This is accompanied by a departure from the ruling of the #BFH of 12.04.2018 - IV R 5/15 (BFHE 261, 157 = BFH, BStBl II 2020, 118), which had already been opposed by the #legislator with the new version of Sec. 15 para. 3 no. 1 sentence 2 alternative 1 #Income #Tax Act - #Einkommensteuergesetz (#EStG), which is retroactively applicable also for #assessment periods prior to 2019, in accordance with Sec. 52 para. 23 sentence 1 #Income #Tax Act - #Einkommensteuergesetz (#EStG).

The vehicle for this was the Act for the Further Fiscal Promotion of #Electromobility and for the Amendment of Further Fiscal Regulations of 12.12.2019 (WElektroMobFördG). According to this, it does not matter whether #profits or #losses are generated from the commercial activity. Rather, #losses are also generally rubbing off. However, the de minimis limit developed by the #jurisdiction continues to apply: If the original commercial net sales revenues do not exceed 3% of the total net sales of the #partnership (relative limit) and at the same time the maximum amount of €24,500 in the #assessment period (absolute limit), a rubbing-off effect will be excluded by way of exception.

In its ruling of 30.06.2022 - IV R 42/19, the #BFH more than clearly distances itself from its ruling of 12.04.2018 - IV R 5/15 [https://www.bundesfinanzhof.de/de/entscheidung/entscheidungen-online/detail/STRE201810101/], describing it as a non-confirmed individual case decision (sic!) and the regulation of the #legislature as the outflow of a consolidated supreme court case law and uniform legal practice. Non omnia possumus omnes!

In the opinion of the #BFH, the "genuine" #retroactivity of Sec. 15 para. 3 no. 1 sentence 2 alternative 1 #EStG n.F. standardized in Sec. 52 para. 23 sentence 1 #EStG is constitutionally permissible , whereby the ruling of April 12, 2018 - IV R 5/15 could not establish any reliance worthy of protection by the company in the year in dispute 2012 anyway.

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