Real estate handover: This is how a transformer can secure himself for the future
When handing over real estate, there are many design options that secure the carrier in the future. For example, the latter can have certain rights (in particular right of residence or usufruct)but also Exceeding, for example, the right to daily meals and the like, through the transmitter, For him and his wife or consort for life or for a shorter period of time, booked up.
With the right design can transformer Economical even after the transfer of civil ownership to the transferee Continue to keep most of the property at their disposal. Gottfried Souls, TPA Tax Advisor: “It Works Until the tax attribution of rental income to the transferor and confirmation of depreciation from the transferor. ”
Income Tax: Who Pays Taxes on Fruit Consumption?
In income tax law, the taxpayer is the person who has a source of income, Any income earned for your own account and at your own risk. In the donation contract, not only the usufruct is agreed, but also the prohibition of foreclosure and sale, and this is entered into the land registry. Meaning: Under civil law, the assignee of the property is the owner, while the original owner, as the beneficiary, disposes of the income from the property.
Who bears the costs of a property with usufruct?
From the point of view of civil law, the expenses associated with the usufruct such as the maintenance of the property must be borne by the usufruct (net usufruct). Thus, current income from rent is attributed to the usufructuary for tax purposes. If the contract is organized accordingly, the economic ownership of the property also lies with the beneficiary in terms of tax law.
When should the opportunities and risks lie with the fruit eater?
Karin Fuhrmann, a tax expert with TPA, advises that “if a beneficiary faces the opportunity and risk of a change in the value of the property, it must be contractually provided that the transferor’s tax benefits are retained.” So called AfA or depreciation from rental income, if the usufruct is not borne by the usufruct owner but rather by the usufruct customer, one speaks of the total usufruct, and in this unfavorable case, For tax purposes, the attribution of income to the bearer of the fruit continues, However it can be There are no deductible fees will.
Conditional enjoyment of fruit: the previous owner keeps the fruit
In the case of conditional enjoyment of the fruit, the previous owner gives the rental property to persons close to him (husband, children) and in turn retains the “fruits” (i.e. the current rental income). With this so-called “usufruct reserved”, the usufruct only transfers the ownership of the thing and retains the usufruct. TPA Sulz expert: “Unlike the right of residence, which is also possible, the transferor has not only the opportunity to use the property for his own living, but also to rent it.” This usufruct is mostly used for investment properties.
exist Two types of usufruct rights reserved: who – which Free and paid right of use
1. Free Usage Right: Schenker reserves the entire right to use
Free use is the most common in practice. exist There is no continuous cash flow Between the usufruct owner and the usufructuary. This means that the person who took possession of the property by donation does not receive any income or income from the property during the period of continuous fruition (usually throughout the life of the donor). The transformer has such The beneficiary has the right to rent the property in his own name and for his own account.
However, if the contract is drawn up accordingly, the transferor can also be treated as the beneficial owner in the tax sense after the donation. Thus, the right to claim the wear and tear (AfA) deduction remains with the transferor. From the point of view of the converter, practically nothing changes with this variant.
For this it is necessary that the beneficiary be the owner from an economic point of view. This means: the beneficial party must be able to exercise the use, depreciation, alteration, mortgage and sale of the property and at the same time be able to permanently exclude any third party (including the owner under civil law).
The transformer must be able to act and act like the owner
The transferor must also be secured with contractual and real rights to the extent that it can act and manage like the owner. So far, this has generally been achieved through life-long usufruct and the prohibition of foreclosure and sale. Property tax advisor TPA Fuhrmann: “You must make sure that Delivery continues to increase value opportunities It bears the risk of depreciation in respect of the property. Von Fuhrmann Advice: Involve your tax advisor with transfer considerations at an early stage to ensure all contracts meet the necessary conditions according to current case law. “The alternative is to consume fruit for a fee.
2. The right of usufruct paid to secure economic property
In the case of consumption of fruit in exchange for payment It is paid monthly by the transferor to the transferee of an agreed amount. go this way With civil law also economic property. This bonus is set within the family, for example, in the amount of AfA or slightly less. As a result, it is Beneficiaries have the same tax impact as with the AfA and the The person requesting the usufruct or the property owner has an income of AfA and therefore no net tax income. If a VAT-related hobby must be avoided, it should Fees, however It is fixed so that it is Special costs including depreciationR.
Transferor pays to transferee: VAT liability and possible economic disadvantages
However, the disadvantage of this variant is that There is a cash outflow from the transferor of the property, Thus, it no longer has the same economic result as it had before delivery. who – which However, it can also be positive, because the flow of liquidity allows income to be divided between the transferor and assignee without having to pay income tax. TPA Sulz expert: “The potential sales tax consequences must also be taken into account, since the transfer of economic ownership of the property can result in a sales tax obligation.”
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