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In order to avoid double taxation of real estate belonging to the business assets of a commercial enterprise with real estate tax and trade tax, 1.2% of the standard values of these business properties are deducted when determining the trade income.
Instead of this reduction pursuant to Sec. 9 No. 1 Sentence 1 GewStG, companies that exclusively manage and use their own real estate and, if applicable, their own capital assets may, upon application, opt for the extended reduction pursuant to Sec. 9 No. 1 Sentence 2 et seq. GewStG.
In this case, the reduction is made by the part of the trade income that is attributable to the use and management of the company’s own real estate. The extended reduction was introduced in particular in order to put asset-managing real estate companies whose income is subject to trade tax only by virtue of their legal form (e.g. GmbH, AG and regularly the GmbH & Co. KG) on an equal footing with asset-managing individuals and partnerships, which are generally not subject to trade tax.
It was unclear whether a real estate managing GmbH & Co. KG, which is only subject to trade tax by virtue of its legal form, is also entitled to the extended reduction pursuant to Sec. 9 No. 1 Sentence 2 et seq. GewStG is also entitled if it holds an interest in a purely property-managing partnership (without a commercial character).
The Grand Senate of the Federal Fiscal Court
answered the question in favor of the plaintiff GmbH & Co. KG. In the opinion of the court, the participation of GmbH & Co. KG in the subsidiary represents the administration and use of the company’s own real estate, which does not contain any activity that is detrimental to the reduction. The mere reclassification of the income from renting and leasing at the subsidiary into income from business operations at the GmbH & Co. KG does not preclude the extended reduction, which is intended to relieve the income that is subject to trade tax solely as a result of the legal form.
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