Private sale business

from Wikipedia, the free encyclopedia

A private sale transaction takes place at the disposal of the private assets belonging to the asset . Capital gains and losses are in the income tax law to the other income counted.

The attempt to profitably exploit price increases for scarce, non-everyday goods such as land, real estate, works of art and antiques can be viewed as an economic activity and lead to taxation. Businesses that are not primarily profit-oriented are delimited and exempted from tax through minimum holding times of the goods after purchase , the sale period (earlier and colloquially, speculation period ), and use for personal residential purposes.

Situation in Germany

While the sale of capital investments could generally also be described as private sales transactions, the legislature has decided to also include items that are not capital investments. A private sale transaction can only exist if the sold asset cannot be allocated to another type of income (agriculture and forestry, commercial enterprise, self-employed activity) (principle of subsidiarity). The following cases exist for the scope of private sales transactions ( Section 23 EStG ):

  • Sale of a property if the period between acquisition and sale did not exceed ten years
  • Selling another asset that was not used on a daily basis if the period between acquisition and sale did not exceed a year (e.g. concerns precious metals and art)
  • Sale of an asset whose use as a source of income generated income in at least one calendar year if the period between acquisition and sale did not exceed ten years.
  • Sale of securities.

Capital gain

The profit or loss from sales transactions is determined as the difference between the sales price on the one hand and the acquisition or production costs and the advertising costs on the other. The acquisition and production costs are reduced by deductions for wear and tear , increased deductions and special depreciation , insofar as they have been deducted from the determination of the income ( Section 23 (3) sentence 4 EStG). As a result, tax reductions from previous years are taken into account and de facto reversed. According to the Federal Fiscal Court , however, there is no violation of the principle of equality, since increases in the value of assets are recorded as profits, but not according to the logic of excess income.

Offsetting against losses from other private sales transactions is possible, but not against positive income from other types of income is otherwise excluded. The losses that cannot be offset are determined separately and can be carried forward to the previous year or the following year or years. If the loss is carried back or carried forward, the offsetting is only possible with positive income from private sales transactions. As soon as these are available, a settlement must be made.

Profits from private sales transactions remain tax-free up to an exemption limit of 600 euros ( 512 euros up to the 2007 assessment period ).

Legal development

Template: future / in 5 years

Before 1999, the speculation period was only six months for stocks and two years for real estate. The Tax Relief Act 1999/2000/2002 of March 24, 1999 (Federal Law Gazette I, p. 402) extended the deadline for land to ten years and for securities to one year. In the case of real estate, this also applied to cases in which the two-year period had already expired. The Federal Constitutional Court saw this as an inadmissible retroactive effect. Sales transactions in securities, in particular shares, were subject to the half-income procedure from 2002 onwards .

In a decision of March 9, 2004, the Federal Constitutional Court declared the taxation of speculative profits from the sale of securities in 1997 and 1998 to be unconstitutional due to unequal treatment of taxpayers. This lies in the fact that, according to the legal regulation for this tax, the data can only be recorded and checked very inadequately, so that the tax authorities rely on the mere tax return without any possibility of control. The result of this is that the state can only access the honestly declared profits, but not all taxpayers, which equates to a "voluntary tax" (so-called structural enforcement deficit , colloquially referred to as a "stupid tax" in political discussion).

In order to solve this problem, among other things, the legislature introduced the account retrieval procedure (also to avert danger / terrorism after September 11, 2001 and also for criminal purposes) and the annual certificate (§ 24c EStG old version). The tax authorities can use the account retrieval procedure to determine which accounts the taxpayer has. With the annual certificate, the banks certify the customers the profits / losses incurred from private sales transactions.

The move away from the average valuation of taxable items up to 2003 and turn to the FIFO procedure from 2004 (first in, first out = the oldest position is reduced first) is the simple fulfillment of the counterclaim of the banks, which have had to determine the capital gains of the securities account holder since 2005 .

With the introduction of the final withholding tax as part of the 2008 corporate tax reform , private capital gains have been subject to tax since January 1, 2009 in the area of ​​capital investments in general and also with a holding period of more than one year. Until 2013, loss carryforwards that arose up to 2008 could be offset against profits from the sale of investments.

The following table illustrates the different treatment of securities in the past (HEV = half-income method ; WP-VK = sale of securities):

from WP-VK taxable Offsetting of losses HEV Consideration in the tax "pot"
before 1999 up to 6 months Cancellation: 1 year, presentation: unlimited No First withdrawal of tax-exempt stock FIFO, then withdrawal of taxable stock proportional! (everything has to be calculated on the exact date of sale and the basket has to be updated)
1999 up to 12 months Cancellation: 1 year, presentation: unlimited No
2002 Yes
2004 Yes Now also withdrawal of taxable stock as FIFO
2009 for new cases: always, withholding tax No carry-back, presentation: unlimited, old losses offset until 2013 No Disposal losses are immediately offset against disposal gains.

In Switzerland

In Switzerland taxable persons subject to respect of private capital gains in some cantons of the real property gains tax (s. Also tax law (Switzerland) ). In Germany, taxable persons are still subject to tax in Germany with regard to their income from capital gains from transactions in or via Switzerland. However, the Swiss banks are not obliged to issue reports that comply with German law, although some Swiss banks offer this as a service for German investors.


Web links

Individual evidence

  1. BFH of September 21, 2005 - IX B 90/05, BFH / NV 2006, 55
  2. BVerfG, decision of July 7, 2010 , Az. 2 BvL 14/02, 2 BvL 2/04, 2 BvL 13/05, full text.
  3. for example the tax law of the canton of Solothurn from 1985, with additions