In share deals, disputes frequently arise between tax authorities and taxpayers regarding real estate transfer tax, due to the discrepancy between the contractual acquisition and the subsequent transfer of ownership.
This dilemma was already discussed in our article from September 22, 2025 (link to the article here).
New ruling by the Federal Fiscal Court (BFH) dated September 16, 2025 – nothing more than a procedural clarification
The Federal Fiscal Court’s (BFH) new ruling regarding the assessment of real estate transfer tax at closing pursuant to Section 1(2b) of the Real Estate Transfer Tax Act (GrEStG) brings bad news. In this case, the ruling reaffirms that there is no doubt regarding the assessment of real estate transfer tax under Section 1(2b) of the Real Estate Transfer Tax Act (GrEStG).
This was preceded by proceedings before the Berlin-Brandenburg Fiscal Court (decision of January 31, 2025, Case No. 12 V 12129/24), in which the court had to rule on a motion to stay enforcement after the tax office had assessed real estate transfer tax on two occasions. In this context, an objection and a motion to stay enforcement (“AdV”) were filed against the closing notice pursuant to § 1(2b), sentence 1, of the Real Estate Transfer Tax Act (GrEStG), and doubts were raised regarding the tax assessment pursuant to § 1(3), no. 1, of the GrEStG. This stems in particular from the fact that, at the time in question, the tax office was aware that the shares in the GmbH in question had already been transferred.
However, the Federal Fiscal Court (BFH) did not accept the plaintiff’s reasoning in this case. The serious doubts regarding the legality of the tax assessment pertained to the tax assessment for the signing and not to the closing. The factual requirements of Section 1(2b) of the Real Estate Transfer Tax Act (GrEStG) for the closing were undoubtedly met. Furthermore, there is no right to have the tax assessment revoked to avoid double taxation under § 16(4a) of the Real Estate Transfer Tax Act (GrEStG), since that provision allows for the revocation of the assessment under § 1 No. 3 of the Real Estate Transfer Tax Act (GrEStG). In this respect, only the assessment relating to the signing transaction may be revoked.
Conclusion and Recommendations for Practice
In the grounds for its decision, the Federal Fiscal Court (BFH) reiterates that there are serious doubts as to whether, in the case of an acquisition of shares in a real estate-owning GmbH where the signing and closing take place at different times, real estate transfer tax may be assessed twice under Section 1(2b) and Section 1(3)(1) of the Real Estate Transfer Tax Act (GrEStG) if, at the time of assessment, it is known that the shares have already been transferred. However, no final decision was reached on this matter. Rather, it was clarified that, under the current legal situation, a double tax assessment is possible, and that a real estate transfer tax assessment for the signing does not justify a suspension of enforcement—i.e., that the disputed tax does not initially have to be paid—of the assessment for the closing.
This case underscores once again the importance of properly handling an objection and strictly adhering to legal standards and deadlines. Therefore, caution is still advised when planning share deals involving real estate in the future. As a result, special attention should be paid to the notification deadlines for the tax office. If real estate transfer tax is nevertheless assessed under both provisions, the appeal should always be directed against the transaction under Section 1(3)(1) of the Real Estate Transfer Tax Act (GrEStG) (signing).
