When selling a property that is demolished following a change of ownership, there is a risk that the tax authority will only consider the value of the land based on the last relevant change of ownership or assessment as investment costs when determining the taxable profit from real estate.
STUMBLING BLOCK PRINCIPLE OF CONGRUENCE
The tax on profit from sale of real estate is intended to tax the so-called "unearned appreciation of value" on the sale of a property. This presupposes that, in terms of scope and content, the same property is sold as was acquired at the time. So-called comparable circumstances must be established by taking into account the changes in substance that occurred during the period of ownership or since the previous sale when determining the profit. The value of the property in question may have increased (increase in substance) or decreased (decrease in substance) as a result of actual or legal changes.
A decrease in substance can occur either through legal or actual deterioration, a reduction in the substance of the property or its area. However, the cause of an actual decrease in substance may not only be that a building built on the property was destroyed or neglected, but may also result from the fact that the building is no longer worth preserving for economic reasons, e.g. because the property is structurally underutilised and the existing building is therefore not prof-itable despite its good condition. If such a property is demolished by the new owner immediately after the sale, from the point of view of the tax administration it is effectively undeveloped land that is being sold. In application of the principle of congruence, the purchase price must there-fore be reduced by the value of the building at the time in order to determine the tax on profit from the sale of real estate, i.e. only those property values that are to be compensated with the proceeds (purchase price) are to be considered as investment costs when determining the profit.
The decisive factor in determining whether such demolished buildings are taken into account in the investment costs is whether these buildings were included in the pricing. As a rule, the pub-licly certified contract of sale is used as evidence. There is a presumption that the purchase price includes the value of the property with all its components if the sale contract does not con-tain any indications for or against the inclusion of the building in the pricing. However, this can be disproved, for example on the basis of indications that the purchaser intended the demolition (with subsequent new construction) from the outset and that it is therefore not to be assumed according to life experience that the purchaser would have been willing to pay for this object as well. The fact that the seller was aware of the fact that the purchaser intended to demolish the property immediately after the purchase and replace it with a completely new building can also speak against the inclusion of the building in the purchase price.
It is advisable to ensure that all real estate assets are considered when determining the purchas-ing price of a property which is demolished following the change of ownership. The real estate assets should be listed accordingly in the contract of sale in order to avoid a high financial bur-den due to the tax on profit from real estate.