German Annual Tax Act 2013 aiming at combatting RETT-Blocker structures

On 5 June 2013 the Conciliation Committe of the German Bundestag and Bundesrat settled the differences about the Annual Tax Act 2013. On 6 June 2013 the law passed the Bundestag and on 7 June 2013 the Bundesrat. The law aimed at combatting undesirable tax planning.

In this context the possibility for real estate companies using RETT-Blocker structures in case of share deals should be restricted.

RETT-Blocker structures aim at avoiding real estate transfer tax in case of an exchange of a legal entity holding German real estate property through an interim holding company in which a third party has a minority interest.

According to the new real estate transfer tax law RETT will be triggered if an acquirer directly and indirectly holds at least 95% share capital in a German real estate property owning entity. By considering also indirect ownership - which was not the case in the past - the new RETT Act receives a more realistic economic view. Technically, all pro rata participations are multiplied when determining the relevant ownership percentage.

The provision particularily affects RETT-Blocker limited partnership structures (KG structures) like illustrated below. These are structures where typically a German KG directly or indirectly holds more than 5% of the shares in a real estate owning company and a third party partner holds more than 5% (in case of the example below with 6% resulting in a minority economic ownership of only 0,36%).

As a result, under the current law, existing RETT-Blocker structures like illustrated below could reach the 95% threshold for RETT purposes.