Recently, I have been confronted with increasingly tricky questions on the subject of property income tax:
Case 1: Divorce
The husband receives his ex-wife's share of the house and takes over all outstanding bank loans in return. An instalment payment is agreed when the house is sold.
The seller, the husband, is exempt from property income tax (ImmoEst) as he has lived in the house long enough. What is important in this case is his ex-wife's 50% share, which was only awarded to him in 2023. How should this be assessed? Does ImmoEst apply here?
Does a 5-year residence requirement in the last 10 years apply again for the new share or is the previous period of residence taken into account?
Even the contract draftsmen disagree on this and calculate with 30% tax to be on the safe side. In the end, I receive a satisfactory answer from the tax consultant: there is no ImmoEst here either.
Case 2: Separation before the 2-year period after house purchase
A customer to whom I sold his flat 1.5 years ago and who has moved into a house in the country with his girlfriend calls me before the weekend in horror, asking what he should do, his girlfriend is just packing her things and moving out. The loan agreement is in her name and they are both listed in the land register. The loan instalments have not been paid recently and he will probably have to sell his house again.
The 2-year period applies here: If both have been registered in the house for 2 years from the purchase contract until now can be sold without ImmoEst, otherwise the 30 % tax is due (selling price minus purchase price + investments, of which 30 % ImmoEst).
Even if the relationship has broken down, you should definitely wait for the 2-year main registration period before selling the house so that no ImmoEst is due.
Case 3: Sale of a flat where the sales deadlines were not observed
Recently, I sold the flats of customers who had bought a garden flat from me years ago because they had moved into a house due to an addition to their family.
When selling, I always clarify the ImmoEst in advance. In this case, the seller explained to me that no tax was due in her case because she had lived in the flat long enough.
When the purchase contract was signed, there was a big surprise when property income tax was due after all. What had happened?
It was true, the couple had been living in the flat for over 2 years since they bought it.
When they moved out, they established their main residence at their new home because of their school-age children. That wouldn't be so tragic. The sticking point here is that the main registration was made more than a year ago (deadline for the tax), then rule 2 automatically comes into force: Has the home been occupied continuously for 5 years within the last 10 years and was the main residence there? This did not work out for 3 weeks and the sellers were very annoyed. Nevertheless, we could not have avoided ImmoEst because the flat was to be sold. Fortunately, the tax incurred was not very high.
Case 4: Sale of a property over 5,000 m² with main house and outbuildings. The plot is divided into 2,000 m² of building land and 3,000 m² of grassland.
The seller has lived in the house for over 2 years and is therefore exempt from ImmoEst. However, the property is over 1,000 m² in size and everything above that in building land is taxed. This means that the main house and 1,000 m² of land are exempt from tax, while a further 1,000 m² is subject to the 30 % ImmoEst tax. Grassland is not taxed.
Case 5: Sale of a property with 800 m² of building land.
Here it must be clarified whether and when a rezoning from green land to building land took place. If the rezoning took place after 1 January 1989, an ImmoEst is also payable here, namely a hefty 18 % of the sales price.
As ImmoEst is really very tricky and the devil is in the detail, always clarify this point before selling!
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