BFH: demerger successor inherits § 6a pre-possession period

After a demerger (Aufspaltung) under the Transformation Act, the acquiring company inherits the split company's pre-possession period for purposes of the group-restructuring relief in section 6aBundesfinanzhof of the Real Estate Transfer Tax Act (Grunderwerbsteuergesetz). In its judgment of 29 July 2026 (II R 5/23), the II. Senat of the Bundesfinanzhof holds that where the interest in a dependent property company was part of the demerger and acquisition agreement, the acquirer as partial universal successor steps into the split company's holding periodBundesfinanzhof — here a 100 percent stake held since 1993 — and thereby satisfies the five-year pre-retention period of section 6a sentence 4 GrEStGBundesfinanzhof, even though the acquirer itself held the stake directly only from the 2010 demergerBundesfinanzhof.

The case concerned real estate held by an F-GmbH, wholly owned since 1993 by a property KG. In 2010 the two 50 percent limited partners each contributed their KG interests to their own corporations; the KG was then split by agreement of 20 August 2010, with business unit 1 including the F-GmbH shares going to the claimant and unit 2 to the brother's company. In 2013 the F-GmbH was merged into the claimant, a transaction taxable in principle under section 1(3) no. 1 GrEStG but claimed as group-privileged under section 6a. The tax office first granted the relief, then revoked it in 2018 for failure to meet the pre-retention periodBundesfinanzhof, arguing the claimant had held the F-GmbH shares for less than five years before the merger and that a holding period, as a highly personal right, cannot pass by universal successionBundesfinanzhof.

The Bundesfinanzhof dismisses the appeal.Bundesfinanzhof A demerger under section 123(1) of the Transformation Act transfers the assets as a whole to the acquirers upon registration under section 131(1) no. 1 UmwG — a split partial universal succession distinct from a spin-off where the transferor survives. Under section 45(1) of the Fiscal Code the tax debt relationship passes in the state it is in, and the conditions for exemptions and relief are judged by reference to the predecessorBundesfinanzhof; excluded are only highly personal circumstances inseparably tied to the predecessor's personBundesfinanzhof. The section 6a holding periods are not of that kindBundesfinanzhof: like the retention periods in sections 5 and 6 GrEStG, which pass to heirs, they attach to holding the parent's interest in the dependent company, not to the person of the holderBundesfinanzhof. The court draws the same line for the split successor, which steps fully into the extinct predecessor's rights and obligations to the extent set in the demerger agreement, including pre-possession periods.Bundesfinanzhof

Two guardrails contain the holding. First, the post-retention period needed no compliance here at all: the F-GmbH ceased to exist in the merger, so that period could not be kept for reasons inherent in the conversion itself. Second, windfall effects are excluded because the demerger's own transfer of the 95 percent-plus stake was itself taxable under section 1(3) no. 4 GrEStG without section 6a reliefBundesfinanzhof — before the 2010 split the claimant held only an indirect 50 percent via its contributed KG interest, below the 95 percent parent threshold — so the inherited period only serves later taxable transactions such as the 2013 merger. The finance authorities' 2023 uniform decrees, which demand that the parent itself satisfy the parent characteristics throughout the pre-period, say nothing about attribution to a partial universal successor and do not contradict the result.

Legal basis: § 6a GrEStG; § 131 Abs. 1 Nr. 1 UmwG; § 45 AO; BFH judgment II R 5/23 of 29 July 2026.