Germany: German Ministry of Finance set to join case on RETT intra-group exception

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Germany: German Ministry of Finance set to join case on RETT intra-group exception

Linn-Alexander
braun.jpg

Alexander Linn

Thorsten Braun

Germany's Federal Tax Court (BFH) has asked the German Ministry of Finance to join a pending case on the intra-group exception to the German real estate transfer tax (RETT) (case ref. II R 62/14). One of the issues raised by the BFH relates to the question of whether or not the intra-group exception has been notified to the European Commission as potential state aid.

Under the RETT intra-group exception, certain direct or indirect transfers of real estate are exempt from tax. One condition for that exception to apply is that the transaction involves one controlling company and one or more controlled entities, requiring a direct or indirect shareholding of at least 95% to exist for five years before and after the transaction. If interpreted literally, this criterion cannot be met where the transaction involves a merger (where the controlled entity disappears) or a demerger (where the controlled entity is created) because the 95% shareholding would either not survive the transaction or would not exist prior to the transaction. Due to the complexity of the rule and the inconsistency of the current administrative guidance, the BFH has asked the Ministry of Finance to join the case and to provide its view on the rule.

Also worth noting is that the BFH has raised the issue that this intra-group exception might constitute state aid according to article 107 TFEU. The BFH has asked the Ministry of Finance to confirm if the rule has been notified as potential state aid or not. This issue, which has not been discussed in German literature, shows the increased importance of state aid in the area of direct taxation, which extends far beyond the current discussion on ruling practices.

Alexander Linn (allinn@deloitte.de) and Thorsten Braun (tbraun@deloitte.de)

Deloitte

Tel: +49 89 29036 8558 and +49 69 75695 6444

Website: www.deloitte.de

more across site & shared bottom lb ros

More from across our site

Awards
Submit your nominations to this year's WIBL Americas Awards by January 23
Recent changes in UK tax rules and cross-border requirements are generating high demand for specialist advice, according to MHA
Hany Elnaggar examines how Gulf Cooperation Council countries are internalising transfer pricing norms within evolving fiscal systems shaped by both Islamic and international influences
Where a TP study of comparables produces an arm’s-length range, and the taxpayer’s filed position is outside that range, HMRC will adjust to the median by default
EY, KPMG, Deloitte, and PwC have all seen a decrease in public sector contracts since the scandal – it is understood
Consoli, a tax partner at Brazilian law firm Martinelli Advogados, tells ITR about the importance of staying at the coalface and constantly learning
Despite legislative gridlock, international investors should be wary of legal precedents set by recent court rulings, which could substantially alter the Spanish tax environment
The new outfit, Ashurst Perkins Coie, will bring together around 3,000 lawyers across 23 countries
As World Tax unveils its much-anticipated rankings for 2026, we highlight the two Brazilian firms that had a standout year of tier promotions
ITR understands that UK Chancellor Rachel Reeves will announce a consultation on the proposed financial reward scheme, which had left advisers fretting
Gift this article