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GermanyBundesfinanzhof

Litigation over accepted gift is not an extraordinary burden, BFH rules

VI R 22/24 of 27 August 2026: EUR 17,740.88 in defence costs for a EUR 7.55m farm gift were not zwangsläufig, so § 33 EStG gives no deduction; Satz 4 is only a bar, not a claim.

By Taxxa AI OyPublished 5 November 2026

Tax

Legal fees for defending an accepted inheritance or gift against a later retransfer claim are regularly not deductible as außergewöhnliche Belastungen.Bundesfinanzhof The VI. Senat of the Bundesfinanzhof held on 27 August 2026Bundesfinanzhof, VI R 22/24Bundesfinanzhof, that the deduction still requires Zwangsläufigkeit under § 33 Abs. 2 Satz 1 EStG even after the introduction of § 33 Abs. 2 Satz 4 EStGBundesfinanzhof by the Amtshilferichtlinie-UmsetzungsgesetzBundesfinanzhof of 26 June 2013Bundesfinanzhof. The Finanzamt's revision succeededBundesfinanzhof: the judgment of the Niedersächsisches Finanzgericht of 15 May 2024Bundesfinanzhof, 9 K 28/23Bundesfinanzhof, was set asideBundesfinanzhof and the claim dismissedBundesfinanzhof.

The plaintiff earned farm and forestry income from the Forstbetrieb "X" and rental income in the dispute year 2018. By notarial Übergabe- und Altenteilvertrag of 3 November 2014 effective 1 January 2015, B, born in 1931, had transferred the forest operation plus three single-family houses to him against a Wohnrecht with care and a monthly cash annuity of EUR 2,500. By his account the values were EUR 7,100,000 for the forest and EUR 450,000 for the houses. He separately bought a Reiterhof from B for EUR 360,000, whose costs are not in dispute. Represented by her son as legal guardian, B later demanded retransfer in several civil suits, asserting dementia-related incapacity at signing. After prevailing before the Landgericht, the plaintiff settled on appeal and paid EUR 17,740.88 in lawyer and private-expert feesBundesfinanzhof in 2018Bundesfinanzhof, which he claimed as außergewöhnliche Belastungen.

Under § 33 Abs. 1 EStG, income tax is reduced on application by the part of zwangsläufig greater expenses exceeding the zumutbare Belastung.Bundesfinanzhof Under § 33 Abs. 2 Satz 1 EStG, expenses are zwangsläufig only when the taxpayer cannot avoid them for legal, factual or moral reasons and they are necessary and reasonable in amount.Bundesfinanzhof Under § 33 Abs. 2 Satz 4 EStG, litigation costs are excluded unless the taxpayer would otherwise risk losing their Existenzgrundlage and vital-needs coverage.Bundesfinanzhof For civil litigation, Zwangsläufigkeit exists only when the event causing the proceedings was itself zwangsläufig, judged by subject matter and cause.Bundesfinanzhof

A taxpayer who concludes the underlying contract themselves defeats Zwangsläufigkeit when they accept a concretely uncertain arrangement that makes later civil disputes foreseeable, regardless of perceived prospects of success.Bundesfinanzhof Disputes over accepting an inheritance or gift are not unusual, so subsequent litigation appears foreseeable. That applied here with particular force: an elderly donor with a close relative transferred assets of substantial value gratuitously to a non-family member, with transferred values of EUR 7,550,000 in extreme disproportion to a Wohnrecht for a very elderly person plus EUR 2,500 monthly. A farm transfer against Versorgungsleistungen counts at least partly as a Schenkung. Notarial authentication does not remove the risk: § 11 Abs. 1 Beurkundungsgesetz is only a Soll-Vorschrift that does not oblige the notary to establish capacity positively. Later success on the merits does not retroactively create ZwangsläufigkeitBundesfinanzhof, and whether the plaintiff foresaw the concrete dispute is irrelevant.

§ 33 Abs. 2 Satz 4 EStG creates no independent deduction for litigation costsBundesfinanzhof; it is only a prohibition on deducting non-existence-threatening costs and presupposes deductible zwangsläufig expense under § 33 Abs. 2 Satz 1 EStGBundesfinanzhof. Wording ("vom Abzug ausgeschlossen"), systematics (the Bundesrat's separate Abs. 3a was not adopted), purpose (relief only for unavoidable subsistence need beyond the Grundfreibetrag) and history (codification tightening pre-2011 case law after VI R 42/10) all confirm this. Whether the EUR 17,740.88 threatened existence therefore did not need deciding.

Legal basis is § 33 Abs. 1, Abs. 2 Satz 1 and Satz 4 EStG (VZ 2018)Bundesfinanzhof as applied in BFH judgment VI R 22/24 of 27 August 2026Bundesfinanzhof.

Advise heirs and donees to price defence costs as non-deductible and document capacity and consideration at transfer to deter retransfer claims.

Sources

Zur Abzugsfähigkeit von Prozesskosten im Zusammenhang mit der Annahme einer Erbschaft oder Schenkung als außergewöhnliche Belastungen