Capital gain

A private sale transaction may be taxable if the sale price exceeds the purchase price and thus generated a profit. Capital gains typically fall on especially in scarce goods such as land, real estate, art, antiques and for securities that are not subject to wear, but rather may experience significant price increases depending on market developments. Speculation, so try to take advantage of such price increases profit, is an economic activity and therefore regular tax ( colloquially speculation tax ). As a demarcation criterion against not primarily economically motivated private business often serves a minimum hold time, the divestiture period (formerly and colloquially speculation period ); in real estate is also directed to the use for their own occupation.

In Germany

If a private assets belonging asset is sold, the process is fiscally not really relevant if it is an object of daily use or a plot of land that has been used at least in the year of sale and in the previous two years for their own occupation. Fiscally, however, are relevant gains or losses from private sale transactions when it is in the asset, for example

• A plot of land and the time period between purchase and sale of not more than ten years,
• To another asset and the period of time between purchase and sale of not more than one year or
• To an asset, from its use as a source of income earnings are at least in a calendar year achieved, and the time period between purchase and sale is not more than ten years.

Private sale transactions can only exist if the sale of assets is not attributable to any other type of income of the Income Tax Act ( agriculture, forestry, trade or business, self-employed, employed labor, rental and leasing ).

Legal until 1998

Gains from private sales transactions within the holding period were subject to income tax. Although it is commonly spoken of a speculation tax, it is not an independent type of tax, but the income tax, which is payable on profits from private sales transactions. The private speculative gains are included in other income within the meaning of § 22 No. 2 in connection with § 23 of the Income Tax Act and thus also apply to profits that were generated abroad.

The purpose of § 23 of the Income Tax Act is within the divestiture period ( earlier speculation period ) to submit realized gains from relatively short-term capital gains of private wealth to income tax. The following cases are distinguished:

• Sale transactions with land and land rights, if the period between purchase and sale not more than ten years is (exception: economic goods, to the period between the acquisition or completion and sale solely for their own occupation or the year of sale and in the previous two years were used own residential purposes ),
• Sale transactions, if the period between purchase and sale not more than one year in other assets. However, if those assets used in at least one calendar year to generate income, the period ( § 23 para 2 sentence 1 No. 2 of the Income Tax Act ) increased to ten years. This is according to the latest case law of the Federal Fiscal Court also for everyday objects that can often be disposed of only at a loss.
• Sale transactions with securities, particularly equities, subject to the Halbeinkünftverfahren in a sale within one year of controllability.

The gains from private sales remained tax-free if the realized in one calendar year total income less than 600 € ( to VZ 2007, there were 512 euros ) is. If this exemption limit is exceeded, all profits must be taxed. Offset against losses from other speculative transactions is possible. An offsetting the losses against positive income from other types of income are excluded. The non- billable losses are determined separately and can be carried forward in the previous year back and the following year. In a corresponding loss back or carry-forward billing is again possible only with positive income from private sales transactions.

Developments

Prior to 1999, the speculation period was only six months for securities and two years for real estate. Due to the Tax Relief Act 1999/2000/2002, on 24 March 1999, announced on 31 March 1999 ( Federal Law Gazette I, page 402), the deadline for land for 10 years has been extended. This was also true for cases where the two-year period had already expired. Herein, the Federal Constitutional Court sees an impermissible retroactive effect.

The Federal Constitutional Court declared the decision of 9 March 2004, the taxation of speculative gains from sales transactions with securities in the years 1997 and 1998 unconstitutional, because of the unequal treatment of taxpayers. This lies in the fact that after the statutory provision for this tax data can only very inadequately recorded and tested, so that the tax authorities leave no possibility of control on the mere tax return. This leads to the result that the state wants to access only the honestly declared profits, but not on all taxpayers, which (designated so-called structural lack of enforcement, colloquially and in the political debate as a " stupid tax") a " voluntary tax" is tantamount.

Among other things, in order to solve this problem, led the legislature the account access procedure (even for Gefahren-/Terrorabwehr after 11.09.2001 and also for criminal purposes ), and the annual statement ( § 24c ITA version). By means of account access procedure, the tax authorities determine what kind of accounts of the taxpayer. With the annual certification banks certify the customer, the resulting gains / losses on private sales.

Legislation from 2009

With the introduction of the flat tax as part of the corporate tax reform 2008, private capital gains since 1 January 2009 in the field of securities generally and for a holding period of more than a year to tax ( income from capital assets, § 20 Section 2 Income Tax Act). § 23 Income Tax Act new version then affects only land and " other assets ". The taxable period pursuant to § 23 Section 1 Subsection 2 Sentence 2 nF Income Tax Act amounts of land and land rights (as before) ten years for the other assets one year. If these assets, however, used as a source of income within ten years after the acquisition, the holding period is extended to ten years. § 24c ITA A. F. falls without replacement.

The following table illustrates the treatment of securities (HEV = Halbeinkünfteverfahren, WP -VK = sale of securities ):

The departure from the average rating of rated positions by 2003 and turning to the FIFO method from 2004 (first in, first out = the oldest position is first decomposed ) is the simple fulfillment of the counterclaim of the banks, the need to determine the capital gains of the depositors from 2005.

In Switzerland

In Switzerland taxable persons subject to respect of private capital gains in some cantons of the real property gains tax (see also Tax Law ( Switzerland ) ). In Germany, taxable persons are also regarding their income from capital gains from transactions in or from Switzerland continues in Germany taxable. The Swiss banks are not required to make a detailed - issue reporting, although some Swiss banks offer this as a service for German investors - the German laws appropriate.