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 2026

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
It was also a memorable night for Baker McKenzie and its associated firms, after picking up 19 awards, including the coveted Asia-Pacific Tax Law Firm of the Year
Stocche Forbes Advogados, Utumi Advogados and Lobo de Rizzo Advogados have reached Tier 2 as competition intensifies in the region’s largest tax market
Ben Webster’s arrival represents a significant expansion of Withers’ London tax litigation practice, as the private client firm eyes further international growth
The combination swiftly builds on RSM’s addition of a new Lithuanian firm to its international network, signalling a European build-out
Tax teams must look beyond pillar two’s headline rules as R&D incentives and the US side-by-side deal create new strategic choices for multinationals, says Marta Pankiv of Tricentis
As funds work becomes more complex, Proskauer is betting that embedded tax expertise can strengthen its wider offering
The recently founded AI platform stands out in a crowded marketplace thanks to a compelling vision and friends in the right places
Advisers expect consumption tax reform to stay on course, but debt pressures could push the government towards tougher enforcement and incentive reviews
The firm demonstrated its sweet spot of litigation with an international twist with the recent win for the Danish tax authority…but it’s not a tax case
The recently formed firm has taken a break from hiring EY talent to expand its transactional tax and tax technology capabilities
Gift this article