The Federal Fiscal Court (BFH) has ruled that the property tax owed by the landlord, but contractually passed on to the commercial tenant, is part of the rent. Therefore, according to the BFH, it must be added to the profit for trade tax purposes. In this case, the plaintiff, a GmbH, had rented a business premises from its shareholders. It was agreed in the rental agreement that the plaintiff, as the tenant, was to bear the property tax.
The tax office was of the opinion that the property tax contractually allocated to the plaintiff was part of the rent to be paid by the plaintiff and should therefore be added under trade tax law. The tax court took a different view and upheld the claim. The BFH allowed the appeal and overturned the judgment of the tax court. According to the BFH, the term "rent and leasehold interest" used by law is to be understood in economic terms. This also included expenses borne by the tenant that would actually have to be borne by the landlord according to the statutory burden-sharing system, but are contractually assumed by the tenant.
According to the BFH, this was the case here. The debtor of the property tax is therefore the owner, i.e. the landlord. Under civil law, however, the property tax can be passed on to the tenant. It is therefore included in the rent, which is to be added in part under trade tax law. The addition cannot therefore be reduced by the tenant assuming expenses that would actually have to be borne by the landlord and the landlord accepting a correspondingly reduced rent in return.
Source: Number 017/22 - judgment of 02.02.2022; III R 65/19/bundesfinanzhof.de
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