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Changes in the value of items held as private assets are generally not taken into account for tax purposes. An exception applies to so-called private sales transactions within the meaning of Section 23 EStG. Since 2009, however, gains from the sale of capital assets have also been taxable in principle (Section 20 (2) EStG).

However, restrictions apply to corresponding losses. These cannot be offset against other income, but only against positive income from capital assets. For losses from the disposal of shares, a further restriction is that these may in turn only be offset against gains from the disposal of shares (cf. Sec. 20 (6) EStG).

It was questionable whether the total loss of a capital claim also leads to an (offsettable) loss from capital assets. The tax authorities are of the opinion that a loss of receivables does not constitute a sale and that such a loss should therefore not be taken into account. The Federal Fiscal Court (Bundesfinanzhof) had already opposed this view for the default of a private loan receivable and had allowed offsetting within the scope of Sec. 20 (20) of the German Income Tax Act. 6 EStG permitted. In another decision, the court also recognizes losses on knock-out certificates. These are financial products that expire when a certain knock-out threshold is reached (e.g. a certain Dax index).

Partial and total losses

This should basically clarify that not only a partial loss on disposal, but also the total loss of securities leads to a tax loss from capital assets.

(For further comments, information and examples, please refer to our information letter 06/2019).

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Neumann & Walczak – tax consulting company GmbH – Robert-Bosch-Strasse 1 – 59439 Holzwickede

Neumann Walczak & Partner Tax Consultant and Lawyer – Partnership –
Robert-Bosch-Strasse 1 – 59439 Holzwickede

Website: www.neumann-walczak.de – E-mail: info@neumann-walczak.de

Phone: (0049) 02301 – 91 291 0 – Fax: (0049) 02301 – 91 291 21