BFH: inflated land price taxed twice — no § 174 AO correction

The II Senate of the Bundesfinanzhof has reversed the Finanzgericht Mecklenburg-VorpommernBundesfinanzhof and dismissed the claimBundesfinanzhof: a GmbH that buys land from a person close to its sole shareholder at an inflated price cannot later invoke § 174 Abs. 1 Satz 1 AO to cut the land transfer tax baseBundesfinanzhof. The judgment of 29 July 2026Bundesfinanzhof (II R 11/24) holds that gift tax on the hidden profit distribution and land transfer tax on the full purchase price do not conflictBundesfinanzhof — both assessments stand side by sideBundesfinanzhof.

The claimant GmbH had bought a developed commercial propertyBundesfinanzhof in 2011 by notarial contract for €1,100,000Bundesfinanzhof from B, then the partner of its sole shareholder and managing director ABundesfinanzhof. Land transfer tax was assessed on the full price at €38,500 in a notice that became final. Years later the gift-tax office assessed €175,590 gift tax against B, treating the gap between the price and the separately determined property value of €480,000 as a gift from A to B by way of a verdeckte GewinnausschüttungBundesfinanzhof. The claimant then applied under § 174 Abs. 1 Satz 1 AO to reduce the land transfer taxBundesfinanzhof to €16,800, arguing the excess over the property value had been taxed twice. The Finanzgericht ordered the reductionBundesfinanzhof; the tax office appealedBundesfinanzhof.

The sale at an inflated price is one uniform life event underlying both assessments — the "certain set of facts" § 174 Abs. 1 Satz 1 AO requires. But a correction additionally requires conflicting assessmentsBundesfinanzhof: two determinations that cannot both be right as a matter of substantive law. That conflict is absent hereBundesfinanzhof.

The presumed exclusion between gift tax and land transfer tax rests on § 3 Nr. 2 Satz 1 GrEStG, which exempts land acquisitions that are gifts under the Erbschaftsteuer- und Schenkungsteuergesetz. By its wording that exemption covers only the case where the consideration is objectively and not insignificantly below the true — higher — value of the land, the mixed gift of landBundesfinanzhof. It does not cover the reverse case, where the consideration exceeds the true value of the land, because no gift of land within the meaning of that provision exists thereBundesfinanzhof. What was given here was not land but moneyBundesfinanzhof: A disposed of her future dividend claim, or made a withdrawal, to the extent the GmbH paid the excessive price to B on a corporate basis — a freigebige Zuwendung under § 7 Abs. 1 Nr. 1 ErbStGBundesfinanzhof, but not a Grundstücksschenkung triggering the exemptionBundesfinanzhof.

The land transfer tax side confirms this. Under § 8 Abs. 1 GrEStG the tax is measured by the consideration, which on a purchase means the agreed purchase price including ancillary performance under § 9 Abs. 1 Nr. 1 GrEStGBundesfinanzhof. The market value of the land is grundsätzlich irrelevantBundesfinanzhof: the statute taxes what is given for the acquisition, not what the buyer receives, and the agreed price counts even when it exceeds the market valueBundesfinanzhof. Since § 8 Abs. 2 GrEStG does not apply, the full €1,100,000 is the considerationBundesfinanzhof — only payment of that whole amount would have secured the acquisition.

Neither assessment is therefore wrong for having taken the same facts into accountBundesfinanzhof: both follow directly from substantive law and are mutually compatibleBundesfinanzhof. The 2011 notice standsBundesfinanzhof, the change application of 27 May 2022 was rightly rejectedBundesfinanzhof, and the claimant bears the costs of the whole proceedings. Legal basis: § 174 Abs. 1 Satz 1 AO, §§ 8 Abs. 1, 9 Abs. 1 Nr. 1 and 3 Nr. 2 Satz 1 GrEStG, § 7 Abs. 1 Nr. 1 ErbStG.