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Lawyer and tax consultant Dr. Dr. Bernd Josef Fehn

12. December 2022

According to the #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 #bagatellgrenze is exceeded (ruling dated June 30, 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-managing activity despite the losses generated in the process. Thus, only 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 § 15 para 3 No. 1 sentence 2 alternative 1 #Einkommensteuergesetz (#EStG), which is retroactively applicable also for #assessment periods prior to 2019, in accordance with § 52 para 23 sentence 1 #Einkommensteuergesetz (#EStG).

The vehicle for this was the Act on the Further Fiscal Promotion of #Electromobility and on the Amendment of Further Fiscal Provisions of December 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 deductible. 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 #discounting effect is 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, 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 (3) No. 1 Sentence 2 Alternative 1 #EStG n.F. standardized in Sec. 52 (23) Sentence 1 #EStG is constitutionally permissible, whereby the ruling of 12.04.2018 – IV R 5/15 could not establish any reliance worthy of protection by the company in the year in dispute 2012 anyway.