Urteil wird noch überprüft: Scheidung: Immobilienübertragung kann steuerpflichtig sein

When separating from a partner and transferring real estate between the spouses, it is crucial not to overlook the implications of income tax. If the transfer of real estate serves to fulfill the obligation of the alimony adjustment, it may constitute a private sale transaction, which incurs tax liability. This conclusion stems from a judgment by the Financial Court of Münster (case number 8 K 901/23 E) cited by the Association of Taxpayers.

The spouses were in a marital community of property status, meaning all income earned during the marriage was jointly owned and required balancing during the divorce. The couple owned a multi-family house and two investment apartments during the marriage. In the divorce proceedings, they agreed that the husband would transfer his co-ownership shares in the real estate to his wife.

In return, both parties waived further claims, including the alimony adjustment and maintenance payments. The Financial Office assessed the transfer as a sale of assets in this scenario. The Financial Court upheld this interpretation, determining that the legal alimony adjustment is primarily directed towards a cash demand. When this claim is satisfied through the transfer of a real estate asset, the transferring spouse is relieved of their obligations, creating a taxable transaction.

Daniela Karbe-Geßler from the Association of Taxpayers notes that this can become costly if the property has not been held for ten years, as the value increase may be considered a gain from a private sale transaction and thus subject to taxes. The calculation includes the acquisition or production costs, as well as certain advertising costs, from which previously accounted deductions can lower the acquisition costs.

The Federal Finance Court still needs to make a final decision on this matter. An interesting exception is noted by the Financial Court: if the alimony adjustment is agreed upon in advance through a marriage contract to be directly realized in the form of a specific asset upon the conclusion of the marital community, its subsequent transfer without compensation may not constitute a sale transaction.

However, a divorce consequence agreement concluded specifically for the upcoming divorce does not suffice, according to the court's opinion. The final word has not been spoken yet: an appeal has been filed with the Federal Finance Court (BFH) (case number IX R 10/26) to review the judgment (case number). The BFH must now determine whether the transfer of co-ownership shares in the divorce consequence agreement indeed generates income from a private sale transaction.

Therefore, anyone considering transferring real estate during a divorce, especially if the property has a short holding period, should carefully consider the tax consequences before agreeing to any arrangement.