Avoidance of commercial use in real estate


The distinction between trading and asset management activities is of key importance for private investors of real estate and also real estate companies since commercial trading often leads to a considerably more unfavourable tax burden. Problems frequently arise after the elimination of the extended reduction of trading tax through the renting of operating facilities and also from the unintentional overrunning of the limit of real estate commercial transactions. Assumed trivialities in this respect can lead to long-term tax liabilities for assets and also result in real disadvantages in relation to German trading tax and write-downs. In special cases there is even a direct effect on the taxation of the taxable persons themselves.


Rödl & Partner has extensive experience with the identification and risk assessment of activities which can be detrimental to asset management and also the structuring of shielding arrangements. In particular, in the latter area our clients benefit from our interdisciplinary capacity and extensive experience in dealing with question relating to tax structure.

Loss of the possibility of extended reduction of trading tax

The following points frequently have a detrimental effect on the extended reduction of trading tax pursuant to section § 9 no. 1 sentence 2 of the German Trading Tax Act:
  • Renting out of operating facilities 
  • Provision of special services parallel to the direct real estate transfer
  • Discrimination due to trading activities or interests in partnerships
  • Termination of real estate management through premature disposal of the last real estate property
  • Real estate trading


Real estate trading as a special area

The area of real estate trading is particularly prone to risk due to the fact that transactions with partnerships can lead to discrimination also at the shareholder level. The areas here include:
  • Avoiding overrunning of the three real estate property limit
  • Examination of shareholder or other group company liability in connection with properties 
  • Conception of shielding structures / separation of asset management area 
  • Assessment of the scope and consequences for current taxation


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Franz Lindner

Associate Partner

+49 911 9193 1245

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Stefan Basgier


+49 911 9193 2441

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Martin Weiß

Associate Partner

+49 911 9193 1253

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