In the real estate industry, the builder model is understood to be a form of civil law design for the exploitation of tax advantages , in which at least two builders join forces for the purpose of building and financing a residential or commercial property .
The builder model is a type of construction model, which also includes the developer model , general contractor and general contractor model , lease purchase and closed real estate funds. These building models differ in particular in the form of interaction between those involved and their tasks. As participants there is the tax relief model builder who Bauherrengemeinschaft , the construction manager and the trustee .
The builder is someone who builds or has a building built at their own risk and expense ( EStDV ). This means that the client is legally and tax-law not a buyer. The builder association is the amalgamation of several builders to form a civil law company with the common purpose of constructing a building . According to Paragraph 1 No. 3b GewO, a building supervisor is someone who is to prepare or carry out construction projects on behalf of a third party for a third party account. According to the BGH , the trustee - who is independent of the other parties involved - has to monitor the execution of a building project to ensure that it does not conflict with the recognition of the investors as builders and the granting of the associated tax advantages. He acts on behalf of and with the power of attorney of the builder, takes on monitoring tasks, participates in drafting contracts and notarial certification and, through his extensive powers, determines the success of the builder model. He concludes all important contracts in the name and for the account of the client ( land purchase agreement , building contract , loan agreement ).(1)
The Cologne model is the prototype and the most important type of builder model. The builders, united in a builders' association, acquire a piece of land as a capital investment and commission a property developer with the construction of commercial or residential properties. The financing of the purchase price (land and building as well as "soft costs") is taken over by credit institutions as part of real estate financing ; all contracts are concluded by the trustee. The first major project with the “Cologne Model” was the “Quartier St. Martin”, a residential development around the church of Groß St. Martin , designed between 1971 and 1976 by the architects Joachim and Margot Schürmann and by the company founded in June 1971 “ modern cologne ”. For this, the architects received the German Architecture Prize in 1981 as an "excellent example of the successful integration of a new building into an existing old town structure".
In the Hamburg model , an asset-managing limited partnership (KG) takes on the property of the builder, becomes the owner of the apartment and earns the income from renting and leasing . The investor is involved in the KG as a limited partner .
With the first-time buyer model ( buyer model ), the investor acquires the ready-to- move property through purchase, whereby a trustee is usually involved who is commissioned by the buyer to process the purchase. Since the investor is not the builder, but the property developer or housing association, there is, strictly speaking, no builder model. Due to the lack of building owner status, the deductibility of advertising expenses in the year of acquisition is more restricted than with the other building owner models.
The building owner models implemented on the basis of civil law and within the framework of the applicable tax law went too far for the tax legislator, so that there were successively serious restrictions. The reason for the development of the builder model was in particular the tax law , because it offered tax advantages for the builder rather than for the buyer. Since 1978, the tax authorities have limited the tax advantages that can be achieved in the “Cologne Model” by examining the property of the building owner and by defining the income-related costs more precisely. A circular from the Hanover Regional Finance Directorate dated October 2, 1978 cited the risk of increasing foundation costs due to the nature of the building site, as well as the questions of who takes out the builder's liability insurance, to whom the building permit is granted, who bears the risk of obtaining financing, as an example of the assignment of the builder's risk Name the construction contracts are concluded and whether third parties guarantee the fulfillment of the payment obligations of the prospective construction company.
In June 1980, the Bundestag Finance Committee criticized the use of the tax law's structuring options in such a way that "with relatively low capital expenditure and high levels of external financing, operating expenses and advertising costs are shifted as far as possible, with the result that taxes in the first few years over high loss allocations in excess of capital employed can be saved to an extent that largely offsets or even exceeds the capital employed ”. By Income Tax Act since the tax account of losses in limited partners to their limited partner is limited, of which the "Hamburg model" is concerned.
The tax authorities reacted with several so-called building owner decrees of the Federal Ministry of Finance , for the first time in August 1972, in which the costs were divided according to whether they are immediately deductible as business expenses at the beginning or whether they can only be written off as acquisition or production costs over the useful life. The next building owner decree in August 1981 provided for extensive restrictions. After that, the client had to be in control of the building process and bear the financing risk. In the form of a catalog, he stated how the various expenses were to be assessed and classified. Further building owner decrees followed in August 1990, according to which the property of the building owner must have a decisive influence on the planning and process of the building project, and in August 2003.
In addition, the case law of the BFH intervened, which in April 1980 for the first time made a tax law distinction between immediately deductible business expenses, production costs and acquisition costs for building owners' associations. In the judgment he defined: "If several people join together to build a building together, they are builders if they themselves - through the division of labor or through dependent workers - control the building process." He questioned this control in a decision in November 1989, because if "the entirety of investors had a significant influence on the drafting or execution of the contract, the purpose of the contract could not be achieved". In this, the BFH made it clear that, under income tax law, investors in the builder model should not be judged as builders but rather as buyers of the built-up property "if they participate on the basis of a contract pre-formulated by the project providers and are represented by them". With its restrictive jurisprudence, the BFH ultimately helped to limit the allowance for income-related expenses.
In January 1985, the sales tax option for investors subject to sales tax was finally abolished.
Former tax savings
The builder model was originally based on the idea that the economic losses in the form of the deposit (= purchase price) and the loan interest and repayments to be raised for their financing were offset by the reduction in the tax burden in the year of the investment and by the income from the rental. The prerequisite for this was the high income of the taxable builders. The client was able to deduct the expenses incurred during the construction phase ("soft costs") as income-related expenses from the taxable income. The high proportion of outside financing triggered interest expenses for him , which inevitably led to tax losses on renting and leasing, which could be offset against the income from other types of income and thus reduced the tax burden. The high tax losses from the rental reduced the income of the client, so that the client model was ultimately to be financed through tax savings. The builder does not have a rental risk if a rental guarantee covers this risk and thus secures the debt service for the real estate financing taken out .
Today, as a result of the changes in tax law, the importance of building owner models has decreased, if not gone away. Builder models are still attractive in times of high inflation , even if they do not offer tax savings, but only a tax deferral. Since December 2005 there has been a tax deferral if initial losses of more than 10% of the contribution are forecast ( (3) EStG). Then this negative income may only be offset against later surpluses from the same model (Section 15b (1) EStG) and no longer against income from other types of income. A tax deferral exists if, based on a model structure, tax advantages in the form of negative income are to be achieved. This is the case if, on the basis of a ready-made concept, the taxpayer should be given the opportunity to offset losses against other income, at least in the initial phase of the investment (Section 15b (2) EStG). Building owner models only lead to tax savings if the expected initial losses reach up to 10% of the deposits.
- BGH, judgment of February 6, 1991, Az .: VIII ZR 26/90
- or "soft costs" are the expenses for trust fees , rental guarantee fees , tax advice , conception, prospecting or sales that do not increase the property's value
- Helmut W. Jenkis: The financing of condominiums according to the "Cologne model" , in: BB 1972, p. 788 ff.
- Werner Baecker: Cologne: seine buildings 1928-1988 , 1991, p. 36
- Harald Gerhards, Helmut Keller: Baufinanzierung von A to Z , 1988, p. 136
- Karlheinz Müssig, Josef Löffelholz: Bank-Lexikon: Concise dictionary for the banking and savings bank system , 1983, Col. 746 f.
- Wolfgang Gerke: Gerke Börsen-Lexikon , 2002, p. 264
- DB 1978, 2047
- Bundestag printed paper 8/4157 of June 10, 1980, p. 1
- BMF letter of August 31, 1972 - F / IV B 4 - S 2253 - 133/72, BStBl. I, 1972, p. 486
- BMF letter of August 13, 1981 - IV B 1 - S 2253a - 3/81, BStBl. I, 1981, p. 604
- BMF letter of August 31, 1990 - VB 3 -S 2253 a - 49/90, BStBl. I 1990, p. 366
- BMF letter of August 20, 2003 - IV C 3 - S 2253 a - 48/03, BStBl. I 2003, p. 546
- BFH, judgment of April 22, 1980, Az .: VIII R 149/75, BStBl II 1980, 441
- BFH, judgment of November 14, 1989, Az .: IX R 197/84, BStBl. II 1990, 299, 303
- Oliver Borchard: Salary and benefits of § 264a StGB (capital investment fraud) , 2004, p. 48
- Karlheinz Müssig, Josef Löffelholz: Bank-Lexikon: Concise dictionary for banking and savings banks , 1983, Sp. 345 ff.
- Peter Rösler, Thomas Mackenthun, Rudolf Pohl: Handbuch Kreditgeschäft , 2002, p. 276
- Karl-Werner Schulte, Jürgen Kühling, Wolfgang Servatius, Frank Stellmann (Eds.): Real Estate Economics II: Legal Foundations , 2013, p. 247
- Builder: Builder without an apartment. In: Die Presse , October 23, 2009
- Andreas Behrenz: The assessment of the advantages of construction projects by the external consultant - demonstrated on the client model. Kovač, Hamburg 1988, ISBN 3-925630-30-9 .
- Bruno Brehm: Builder models. Vienna 2005 (Master's thesis in real estate courses at the Vienna University of Technology).
- Decision database of the Federal Court of Justice with decisions since January 1, 2000