According to the #Bundesfinanzhof (#BFH), #losses from a commercial activity cannot prevent the reclassification of an otherwise asset-managing activity of a Gesellschaft b\u00fcrgerlichen Rechts (#GbR) if a #bagatellgrenze is exceeded (ruling dated June 30, 2022 – IV R 42\/19).<\/p>\n
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 \u00a7 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 \u00a7 52 para 23 sentence 1 #Einkommensteuergesetz (#EStG).<\/p>\n
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 (WElektroMobF\u00f6rdG). 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 \u20ac24,500 in the #assessment period (absolute limit), a #discounting effect is excluded by way of exception.<\/p>\n
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!<\/p>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"
According to the #Bundesfinanzhof (#BFH), #losses from a commercial activity cannot prevent the reclassification of an otherwise asset-managing activity of a Gesellschaft b\u00fcrgerlichen 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 […]<\/p>\n","protected":false},"author":4,"featured_media":5333,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":"","_links_to":"","_links_to_target":""},"categories":[46,49],"tags":[],"class_list":["post-5739","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-blog-en","category-tax-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/posts\/5739","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/comments?post=5739"}],"version-history":[{"count":0,"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/posts\/5739\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/media\/5333"}],"wp:attachment":[{"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/media?parent=5739"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/categories?post=5739"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fehn-legal.de\/en\/wp-json\/wp\/v2\/tags?post=5739"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}