If no more than ten years elapse between the purchase and sale of a property, the gain therefrom may be subject to income tax as a private sale transaction (Sec. 23 (1) No. 1 EStG). Excluded from this are properties that were used exclusively for residential purposes and properties that were used for residential purposes in the year of sale and in the two preceding years. (on the subject of short-term third-party leasing, in the next paragraph).
According to the case law of the highest court, a continuous period of three calendar years is sufficient for the second exception, whereby only the middle year must be used by the company itself throughout the year.
It has not yet been conclusively clarified whether this exemption is met in the case of a short-term third-party rental in the year of the sale. In this respect, the tax authorities also only expressly state that renting in the middle calendar year is to be regarded as detrimental and a vacancy in the year of the sale is to be regarded as harmless.
In a recent fiscal court ruling
the court does not consider a short-term rental in the year of the sale to be detrimental if the building or the apartment was used for own residential purposes in the year of the sale and in the two preceding years. It is not necessary to distinguish between a vacancy that is not tax-damaging and a rental that is tax-damaging; the exemption rule can be applied to both cases. According to this, only the rental in the middle year would be tax-damaging, since there would then be a lack of a continuous period of use for own residential purposes.
The ruling is not yet final; it therefore remains to be seen how the Federal Fiscal Court will decide.
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