Required value
A need value is
- a taxable value,
- a value that is only determined when it is needed for taxation purposes / there is a need, e.g. B. for the purposes of inheritance tax , real estate transfer tax ( Section 151 (1) Valuation Act ).
The decision on its significance for taxation is made by the tax office responsible for setting the inheritance tax or determining it .
General
Regulations for the valuation of property for inheritance and real estate transfer tax that differ from the general provisions of the Valuation Act (BewG) were first issued as a result of the rulings of the Federal Constitutional Court (BVerfG) of June 22, 1995. The Federal Constitutional Court had the legislature u. a. obliged to eliminate the different tax burden on real estate and other assets in the case of wealth tax and inheritance taxation.
With the Annual Tax Act 1997, the fourth section with the provisions for the valuation of property for inheritance tax from January 1, 1996 and for property transfer tax from January 1, 1997 with sections 138 to 150 BewG was inserted into the Valuation Act. With these regulations, the unit valuation, which had also been valid for these cases, was replaced by the determination of a real estate value (also called a requirement value).
The provisions of §§ 138 to 150 BewG, which were established at the time, apply - partly in a modified version - today only for the purposes of real estate transfer tax. The question of the unconstitutionality of real estate values as a basis for assessing real estate transfer tax is expected to be decided by the Federal Constitutional Court in the near future.
According to the decision of the Federal Constitutional Court on the Inheritance Tax Act, the valuation law in force since January 1, 1996 was also unconstitutional. In the opinion of the Federal Constitutional Court, the valuation of the accruing assets when determining the inheritance tax assessment base must consistently be based on the common value as the relevant valuation target. The valuation methods must ensure that all assets are recorded at an approximate value to the fair value.
With the law for the reform of inheritance tax and valuation law (ErbStRG) with the sixth section "Regulations for the valuation of real estate, of unlisted shares in corporations and of business assets for inheritance tax from January 1, 2009" with §§ 157 bis 203 BewG added.
details
The greatest importance for practice in terms of the number of cases, but not necessarily in terms of value, are the provisions on the determination of real estate values, in particular those for real estate, with the exception of the special cases of Sections 192 to 197 BewG.
According to Section 153 (1) BewG, the tax office can request a declaration of assessment from anyone for whose taxation a separate assessment is important. The trigger for the request to submit a declaration is - apart from transactions relating to property transfer tax - usually an inheritance or gift case known to the tax authorities. A z. B. the obligation comparable to the income tax law or the real estate transfer tax law to have to submit a declaration or report in the event of certain facts or when certain income limits are reached, does not exist here.
For real property includes the land , the building , the other components and accessories , the ground lease , the residential property , the partial ownership , the apartment leasehold and part leasehold after the Condominium Act , insofar as it does not involve agricultural and forestry assets involved or business premises . ( § 176 Abs. 1 BewG)
Types of basic wealth
How is that even in the land evaluation in the unit rating Grundvermögen divided, in "vacant land" and "land with". The legal definition in §§ 145 BewG and 180 ff. BewG is based on the regulations for unit valuation in §§ 72 and § 74 ff. BewG, but is not identical. So z. B. the delimitation of the types of property - in contrast to the unit valuation - according to the living space and not according to the annual gross rent.
Evaluation process
Undeveloped land
Undeveloped land is land on which there are no usable buildings ( Section 178 BewG). The value of an undeveloped plot of land is usually determined according to its area and the standard land value determined by the relevant expert committee for the area . ( § 196 , § 179 BewG)
Developed land
According to Section 181 (1) BewG, a distinction is made between the following types of land for built-up land:
| Property type | requirements |
|---|---|
| One and two family houses |
|
| Rental residential properties |
|
| Condominium or part ownership |
|
| Business property |
|
| Mixed-use properties |
|
| Other developed land |
|
- Appraisal
In the case of built-up properties, the valuation procedure depends on the type of property in question. The value of these properties is to be determined according to the comparative value method , the income approach or the material value method ( Section 182 BewG).
- Comparison value method
In principle, residential property, partial ownership and single and two-family houses ( Section 183 BewG) are assessed using the comparative value method . The prerequisite for using this procedure is that the expert committee has determined corresponding comparative prices or comparative factors.
The comparative prices determined by the expert committee are customary market purchase prices for properties that are sufficiently in line with the property to be valued. Sufficient agreement can still be assumed if the value-influencing features of the property to be valued differ from the comparative property by no more than 20%.
If no comparative value is available, the affected properties are to be assessed using the real value method.
- Capitalized earnings method
The income value method is used to assess rental properties, commercial properties and mixed-use properties for which a normal rent can be determined on the local property market ( Sections 184 to 188 BewG).
The real estate value determined using the discounted earnings method is made up of the land value and the building value. The land value is determined as with an undeveloped property. The building value is determined on the basis of the yield.
Gross profit is the agreed fee that the user has to pay on the valuation date, converted to 12 months. The rent actually paid does not matter. If no rent is paid (e.g. own use, no use) or if the agreed rent deviates from the usual rent by more than 20%, the usual rent is to be applied, which is estimated on the basis of local rents for comparable rooms.
The management costs are to be taken into account as a lump sum based on experience. If the local expert committee does not provide empirical data, the lump sum is to be determined taking into account the type of property and the remaining useful life of the building in accordance with Annex 23 of the BewG.
The property interest rate is to be determined according to the type of property. If no property interest rates are provided by the local expert committee, the standardized property interest rates of Section 188 BewG are to be used.
- Real asset method
The property value method is used to evaluate properties for which no comparative value can be determined using the comparison value method provided for these properties, commercial properties and mixed-use properties for which no normal rent can be determined on the local property market, and other developed properties ( Sections 189 to 191 BewG ).
In the real value method, the value of the building is to be determined separately from the land value.
The land value is the value of the undeveloped property determined in accordance with Section 179 BewG.
The standard production costs are not the actual but the usual production costs per square meter of gross floor space. They are shown in Appendix 24 Part II and III BewG, depending on the type of property, building class, year of construction and equipment standards. The normal production costs 2000 (NHK 2000) are currently the basis for determining these costs.
The gross floor area is the sum of the floor areas of all floor plan levels of a building with uses according to DIN 277-2: 2005-02, Table 1, No. 1 to 9, and their structural enclosures.
The reduction in age is regularly determined according to the ratio of the age of the building on the relevant valuation date to the typical economic total useful life according to Annex 22 BewG. If significant changes have occurred after the building is ready for occupancy, these must be taken into account when determining the age depreciation.
The real value of the property is determined from the sum of the land value and the building value with the help of a value figure. If the local expert committee does not determine any real value factors (market adjustment factors), the figures shown in Annex 25 BewG are to be used, broken down according to building class and the amount of the preliminary material value.
Proof of the lower market value
The provision of Section 198 BewG, also known as the “opening clause”, gives taxpayers the opportunity to prove that the market value (= common value) of the property to be valued is lower than the real estate value determined by the tax office according to the general provisions.
The possibilities of proof are limited. An expert opinion by the locally responsible expert committee or an expert for the valuation of land or a purchase price for the land to be valued within one year before or after the valuation date can serve as evidence.
literature
- Rudolf Rössler, Max Troll: Evaluation Act, Comment . Franz-Vahlen-Verlag, Munich 1998, ISBN 3-8006-2213-0 .
- Lorenz Gürsching, Alfons Stenger: Commentary on the valuation law and wealth tax law . 9th edition. O.-Schmidt-Verlag, Cologne 1992, ISBN 3-504-25074-7 .
Individual evidence
- ↑ BVerfG, decision of June 22, 1995, Az. 2 BvL. 37/91, BVerfGE 93, 121 - Standard values II = BStBl. II 1995, 655.
- ↑ BVerfG, decision of June 22, 1995, Az. 2 BvR 552/91, full text = BVerfGE 93, 165 = BStBl. II 1995, 671.
- ↑ Annual Tax Act 1997 (JStG) of December 20, 1996 BGBl. 1996 I p. 2049 = BStBl. I, p. 1523
- ↑ BFH, decision of May 27, 2009. Az. II R 64/08, full text = BStBl II 2009, 856.
- ↑ BVerfG, decision of November 7, 2006, Az. 1 BvL 10/02, BVerfGE 117, 1 - Inheritance tax = BStBl. II 2007, 192.
- ↑ ErbStRG of December 24, 2008, BGBl. 2008 I p. 2794 = BStBl. I 2009,74 (Art. 2 No. 14)
