Germany: Retroactive changes to RETT rules to apply from 2009

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: Retroactive changes to RETT rules to apply from 2009

linn.jpg

braun.jpg

Alexander Linn


Thorsten Braun

On July 17 2015, Germany's Constitutional Court made public a decision, dated June 23, in which the court held that the 'secondary tax base' or 'special tax value' used in the calculation of the value of real property for German real estate transfer tax (RETT) purposes is unconstitutional. The secondary tax base is used as an alternative method of calculating the value of real property in cases where real property is not purchased directly, such as the direct or indirect transfer of shares in real estate holding entities, mergers, and so on. The secondary tax base generally results in values that are far lower than the fair market value of the real property, in many cases only reflecting 50% or less of the fair value of the property. The secondary tax base is calculated based on the actual annual rent or an alternative customary rent combined with certain multipliers and adjustments or, if rent is not available, on tax book values for land and buildings with relevant adjustments.

The court held that the calculation of RETT based on the secondary tax base violates the equality principle in article 3 of the German constitution because it deviates significantly and unintentionally from the market value of the real property. The court decided that the current version of the law cannot apply as from January 1 2009, and that parliament has until June 30 2016 to enact a new law that applies retroactively from January 1 2009.

The change in the law is expected to result in an increased RETT base closer to the fair market value used in direct purchases and, therefore, to an increased RETT in future transactions. Further, due to the retroactive effect of the decision, the new law could apply in cases where the RETT-triggering event already has occurred but the RETT base has not been finally assessed or where the RETT- triggering event has not been indicated or detected.

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

Deloitte

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

more across site & shared bottom lb ros

More from across our site

Ex-EY and Hourani & Partners leader Zain Satardien is using flexible staffing and AI-enabled systems to test a leaner model for specialist tax advice
The big four firm is rightfully prioritising transparency and accountability as it seeks to rebuild from its scandal, but a glaring structural issue remains
A recent hiring flurry has taken the firm’s number of partner appointments this year to 121 and put it on track to hit 160 partner target early
The move brings specialist tax and litigation capability to EY as it seeks to close the gap on Baker McKenzie and Venezuela’s leading local firms
The industry’s response to AI requires an unfamiliar ingredient as firms battle to shape their futures
The ambitious big four challenger firm has also appointed ex-RSM partner Brad Ashton to build out its customs and global trade practice
The big four firm allegedly reviewed backdated documents and signed off on accounts that removed hundreds of millions of dollars of Abramovich’s assets
New Tier 1 entrants and an expanding cohort of established players indicate that law firms are becoming increasingly credible challengers in Europe's TP market
Awards
Leading firms and individuals gathered in Dubai to celebrate standout legal, dealmaking and tax work across the region
Tax authorities want more revenue, have better tools to find it and are increasingly willing to fight for it
Gift this article