first production costs versus maintenance costs for buildings
It makes for the current tax burden on the taxpayer a significant difference between expenses and expenses immediately to 100% can be claimed against tax, or over a period of 30 to 50 years must be distributed. This problem arises, for example, then, when real estate "refurbished". Conservation effort, both in operations and in the area of privately held, leased property, must be 100% as operating expenses and advertising costs are eligible, during subsequent production costs be spread over the useful life. How different but now?
Under the Income Tax Regulations (R 1.21, paragraph 1) expenses for the renovation are already existing parts, equipment or facilities regularly conservation effort. Other hand, include expenses that are incurred for the production of an asset, its extension or for a substantial excess of its originally to improve the production costs. This formulation assumes the tax law of § 255 para 2 sentence 1 HGB.
over their original condition beyond the property will be improved, if it is achieved by rehabilitating a much higher rent. Scale is therefore the improvement of the yield value. This is understandable and in most cases good of a reorganization, which must be regarded as a repair to distinguish .
unproblematic was the assessment of costs in connection with the expansion of existing properties. Whenever such as additional living space was created, had production costs are assumed. So far so good.
On 26 11. 2009 (3 k 3807/04) said the Tax Court of Hesse this an interesting sentence. The contentious issue did not refer to the extension in substance, but to the expansion of uses, so only the creation of conditions. And this is new.
Subsequent production costs fall after the verdict, for example, occurs when a flat roof will be replaced by a gable roof in the way that this occurs for the first time a residential use expandable attic. The same applies if a pitched roof will be replaced by a flat roof in such a manner, resulting in a second floor. It does not matter whether the taxpayer in carrying had the relevant construction projects intended to create something new in the above sense. It is not necessary that the attic could be boosted for residential purposes. It is sufficient, provided that after the overall picture of the actual conditions by the construction of the condition was to set up new housing. The tax liability arises under § 38 AO - the court - once the factual requirements are met regardless of a corresponding realization of the will of taxpayers.
The taxpayer in this case must cover all its costs start a subsequent production costs. This is in contrast to operating expenses and advertising costs are amortized by the percentage by which the building is written off, so instead of 100% only between 2.0% and 3.0%. Should have expected the taxpayer actually with the full deduction of his costs would be, that ruling its calculations efficient swirl through today.
second depreciation for buildings on leased land
On 14 04. 2010, the decision of the Federal Fiscal Court from 25.02.2010 (R/2/07 IV) was published. This involved the consideration of tax cost of an extension to a building. This cultivation was, however, on foreign land. The plaintiff had leased the land from relatives. The cultivation belonged to him not de jure. The cost, he capitalized on its balance sheet as deferred income, which it refers to the duration of the lease distributed pro rata. This made the assessment office and not assessed the cost of construction as subsequent production costs of the old building, which already the property was available.
The resulting dispute was now put before the Federal Tax Court. That court held that it is for the treatment of the cost of another building irrelevant whether the authority to use the taxpayer on a free or a for value relationship is based on whether the taxpayer entitled to civil compensation claims against the owner of the property or he from the outset such claims waived, ie, the acquisition of the production costs by the taxpayer provide a free gift to the owner of the property, or no consideration for the grant of use is of the property. All this does not count. The BFH qualified for the expense as costs of production of a strange building, which balance technical "as a material asset" to activate and amortized in accordance with applicable building depreciation rules. This allowed the plaintiff has incurred by him on the manufacturing cost - depreciation period of the lease, but at 3% pa In this case, the tax planning to thoroughly correct - short.
third binding of the taxpayer to an agreement during the last completed audit
well anyone who "suffer" in the past, a tax field audit (BP) had, has reached agreement with the auditor or the tax office so-called "true understanding". These are quite common and available to certain situations which clarify is difficult to determine as accurately as possible by consensus. In general, this is recorded in writing, but also may be informal. If the actual understanding in the BP report, written down, so should the taxpayer for the coming tax years as far as possible adhere to this agreement. Otherwise there is a risk that the taxpayer is a departure in his favor as tax reduction and thus interpreted as evasion at worst. Now, the Tax Court of the Saar with its decision of 26 01.2010 (IK 1178/07), interestingly, a case decided against the taxpayer, in which he did not depart from an understanding on the part of the on-BP , but has been kept exactly that.
The sole member / manager of a family-GmbH has a plot at a much inflated rent, on the one had but at the previous audit (pre-BP) agreed in fact, continue to be charged . However, it was obvious that this hire was much overestimated was. That is why, the BFH, the agreement on the reasonable rent during the on-BP, is not binding for the subsequent assessment periods. That whereas it constructive dividends to the plaintiff taxpayers were, was the logical consequence. This is not the reason why is take up this opinion.
offers In my assessment, here's a way, deviations from agreements reached with the pre-BP also justified in the opposite direction. Financial management will in fact be allowed to hold might that such agreements do not survive if circumstances occur or become aware of the tax office to issue a change notification to § 173 entitle AO would. Then it must also be the taxpayer be allowed to depart in his favor by the agreements with the pre-BP. The task of the taxpayer or his adviser will be to formulate the "new facts" to the evil accusation of tax evasion to counter or put their own ideas.
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