Tax consequences of the transfer of real estate for inheritance and gift tax purposes

Case 1: Preferential inheritance community

Facts

On 4 July 2011, Andreas Schindler transferred two plots of land (Alpenstrasse and Feldweg) in Winterthur to all five of his descendants by "donation". In return, the donee took over, among other things, an existing mortgage and was entered in the land register as the joint owner of both properties according to a simple partnership.

Four months later, on 12 November 2011, Andreas Schindler passed away. The five siblings acquired four more plots of land in Winterthur from their father by inheritance as sole heirs. With the contract of 4 May 2013 "concerning the withdrawal of partners and of co-heirs from a community of heirs", three of the siblings left the community of heirs with regard to the Alpenstrasse property, so that the brothers Emil and Oskar Schindler became joint owners of this property. Likewise, the heirs of Andreas Schindler formed further reduced communities of heirs, each comprising two properties, with regard to the properties acquired by way of inheritance. On 30 October 2014, Emil Schindler ceded his entire share of the Alpenstrasse property to his brother Oskar Schindler, who thus became the sole owner.

Question

Will the changes of ownership on 4 June 2011, 4 May 2013 and 30 October 2014 lead to real estate gains tax consequences?

Solution note

see StE ZH B 42.32 1996 No 5

Case 2: Mixed donation

Facts

In December 2011, Franz Flückiger will donate his solely owned property to his children Beat and Claudia. At the same time, he granted himself and his wife life-long usufruct of the property. The following parameters are given:

• Market value of the property: CHF 1,000,000
• Total consideration: CHF 800,000 (of which CHF 400,000 each usufruct and mortgage)
• Donation: CHF 200,000

Question

What are the tax consequences in the cantons of Zurich, Aargau and Bern?

Solution note

Moritz Seiler, Grundstückgewinnsteuerliche Folgen der Schenkung mit Nutzniessungsvorbehalt, ASA 80 (2012), p. 633 ff.

Case 3: Mixed gift with right to share in profits

Facts

Axel (57) and Barbara (53) Seeger are married. They have two daughters Ursula (29) and Silvia (24). The parents decide to transfer their self-occupied single-family house to their daughter Ursula, as they would like to move into a smaller apartment themselves and Ursula is married and already has two small children of her own.

The single-family house is valued by an external property valuer at CHF 1,200,000. The transfer price is set at CHF 1,000,000. The payment of the purchase price is agreed as follows:

The sister Silvia also signs the purchase contract and confirms that she agrees with the purchase price. At the same time, a right to a share in the profits is agreed for a period of 5 years in favour of the parents and the sister Silvia, should the property be sold by Ursula at a higher price than CHF 1,000,000.

Three years later, Ursula's marriage is divorced and she is forced to sell the property. She achieves a sales price of CHF 1,300,000.

Questions

1. What are the tax consequences of transferring the property from the parents to Ursula?
2. How is the granting of the profit-sharing right to be assessed from a tax perspective?
3. What are the tax consequences of Ursula selling the property?

Solution notes

cf. StE B 42.32 ZH 2004 No 7; StE B 23.45.2 DBG/FR 2016 No 11; BGE 2C_119/2009; BGE 2C_162/2016; 2C_163/2016 (ASA 85 p. 323); BGE 2C_559/2019.

Case 4: Operating company with real estate

Facts

Peter Amsler is the owner of the very successful Amsler Informatik AG. He is 55 years old and would like to sell the company over the next few years. However, he would like to sell the company without real estate, firstly because the company would be much easier without real estate and secondly because he would like to keep the real estate as a "retirement provision".
The balance sheet of Amsler Informatik AG is as follows:

Question

Mr. Amsler asks you whether there is a possibility to separate real estate and business in a tax-efficient way.

Case 5: Sale of a real estate company to Sohn by a holding company

Facts

Pierre Spalinger lives in Baden AG. He is the sole owner of Spalinger Holding AG, which is based in Zug. In 2007, this company sold the extremely successful Spalinger Logistics AG for CHF 8 million to a French logistics and transport company. The only remaining subsidiary is PS Immobilien AG, based in Spreitenbach.

The balance sheets as at 31 December 2009 are as follows:

Questions

Mr Spalinger has four children. He wants to sell the real estate company of his youngest daughter Jasmine. He therefore comes to you with the following questions:

1. What tax consequences result from the sale of PS Immobilien AG shares?
2. Which tax consequences result from the sale of the shares of Spalinger Holding AG?
3. Should the subsidiary Jasmine acquire the shares directly or through a buyer holding company?
4. Should the surplus liquidity be taken out of Spalinger Holding by means of a dividend? What tax consequences could be expected in this case?