Verdict Inheriting Hospice pays double taxes

BFH: GmbH has to pay 45 percent inheritance and corporate tax
If a nursing home receives an inheritance, it must pay double tax for this. For a corporation, 30 percent inheritance tax and again on the full inheritance 15 percent corporation tax due, as the Federal Finance Court (BFH) in Munich on Tuesday, February 7, 2017, at the BFH annual press conference announced decision (Ref .: IR 50 / 16).

For the protection of the inhabitants the home law does not allow donations and inheritances for nursing homes actually. However, the supervisory authorities may issue a waiver on a case-by-case basis. In case of dispute, the resident had made his will in 2008. Thereafter, his inheritance should come to his nursing home, a limited liability company. The exemption was granted.

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When the man died in 2012, he left well over a million euros. The tax office first collected inheritance tax from this. Without kinship proximity ratio of the maximum rate of 30 percent was due, so good 300,000 euros. In addition, the tax office demanded 15 percent corporation tax, also measured at the full inheritance, so again a good 150,000 euros.

The home accepted the inheritance tax, but sued for corporation tax. Without success: Like the Finanzgericht, the BFH dismissed the lawsuit. The corporation tax "is neutral and therefore not often emotional," said chairman Roland Wacker at the presentation of the verdict in Munich.

According to the judgment, the inheritance can not be equated to the contribution of a partner. All other income, however, should be treated as "business income". There is "no external sphere", which could be attributed to a donation or inheritance.

The multiple taxation is permissible and even created in the Basic Law. A "strangling effect" unfold the double taxation here. The total taxation here is 45 percent. According to the case law of the Federal Constitutional Court, up to 60 percent are acceptable without infringing the property right.

The principle of equality was not violated either. Although homes, which are not organized as a limited liability company or stock corporation, are subject to income tax, where there are some benefits. However, the legislature is not constitutionally forced to tax all legal forms equally, stressed the I. BFH Senate in its judgment of 6 December 2016, now published in writing.

In addition, the II. BFH Senate had already decided in 2006 that an inheritance to a society organized as a civil partnership (GbR) retirement home in addition to inheritance tax is also subject to income tax (judgment of 14 March 2016, Ref .: VIII R 60/03 ). mwo / fle