Inheritance tax – securities – harmful administrative assets

Current inheritance and gift tax law provides for special preferential treatment for business assets (see Sec. 13b (1) Nos. 1 to 3 in conjunction with Sec. 13a ErbStG). In order to avoid abusive arrangements, e.g. through deposits, financial resources and securities accounts within a business’s assets are generally only eligible for tax relief to a limited extent. These so-called (net) administrative assets are only included in the tax-privileged business assets up to a limit of 10%. However, this only applies to administrative assets that were part of the transferred business assets for the last 2 years prior to the death of the testator or prior to the date of the gift.

The Münster Fiscal Court has ruled that even securities that were merely restructured within 2 years prior to the testator’s death are to be treated as harmful “young” administrative assets from the outset and thus cannot be taken into account under the 10% limit.

In the case in dispute, the federal bonds and notes included in the business assets had reached final maturity and were replaced by other investments in the last 2 years before the date of death; the ratio of administrative assets did not change as a result. In the opinion of the court, only the stock of administrative assets at the time of the inheritance is decisive; according to the wording of the law, no distinction is to be made as to whether it is a matter of regrouping or of new acquisitions from the company’s liquidity reserves.

According to the Tax Court, the purpose of the provision is also to prevent abusive arrangements (e.g., through contributions), but the provision “does not stipulate that it must be examined in each individual case whether an abusive arrangement exists in the individual case.” An appeal against this decision has been lodged with the Federal Fiscal Court.

(Further comments & information on this can be found in our information letter 07/2018 under the item 6.)