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Lohnsteuer kompakt FAQs

 


Property

This text refers to the Steuererklärung 2021. You can find the version for the Steuererklärung 2025 at:
(2025): Property



Rules for renting to relatives

Reduced rent for family members with its advantageous tax regulations offers the opportunity to claim losses from renting and leasing. These usually result from depreciation and interest on loans associated with reduced rent. If you comply with certain rules when renting to children, you can deduct the expenses in full as advertising costs, while only taxing the lower rental income. The tax-saving model also works when renting to dependent children.

There is an important change from 01.01.2021:

  • If the agreed rent is at least 66% of the local market rent, the expenses can be fully deducted as advertising costs.
  • If the agreed rent is between 50% and 66% of the market rent, the intention to generate income must be checked, and a profit forecast is required:
  • If the profit forecast is positive, the advertising costs can be fully deducted.
  • If the profit forecast is negative, the advertising costs must be divided and can only be partially deducted.
  • If the agreed rent is less than 50% of the local market rent, the use must be divided into a paid and an unpaid part. The expenses can only be deducted as advertising costs in proportion to the paid part.

Important: If the rent is at least 50% but less than 66% of the local rent, a total surplus forecast check must be carried out:

If this total surplus forecast check is positive, the intention to generate income is assumed for the reduced rent and the full deduction of advertising costs is possible.

If the total surplus forecast check is negative, the intention to generate income is only assumed for the paid rented part. For the paid rented part, the advertising costs can be partially deducted.

The total surplus forecast check for income from renting and leasing is carried out according to long-standing and established BFH case law. The BMF letter dated 08.10.2004 (BStBl 2004 I p. 933) remains applicable.

Note: When renting furnished or partially furnished apartments, it may be necessary to include a surcharge for the furnishings to determine the local market rent. Such a furnishing surcharge must be considered according to the Federal Fiscal Court's ruling of 06.02.2018 (IX R 14/17) if it can be determined from a local rent index or marketable surcharges. Determination in any other way is not permitted. In particular, it is not permissible to derive a furnishing surcharge from the monthly amount of the linear depreciation for the furniture and furnishings provided. Nor is it permissible to apply a percentage rental yield surcharge.

 

The 50% or 66% threshold applies only to the rental of apartments, not to commercially or professionally used premises.

 

Currently, the Federal Fiscal Court has ruled that reduced rent can also be recognised for tax purposes for a dependent child if it withstands a so-called third-party comparison. This means that the rental contract has been agreed in a legally effective manner and both its design and the actual implementation of the agreement correspond to what is customary between strangers. This requires that the main obligations of the contracting parties have been clearly and unambiguously agreed and implemented accordingly, even when renting to relatives. "Strict requirements are placed on the proof of the seriousness of contractual arrangements between related persons" (BFH ruling of 16.02.2016, IX R 28/15).

In the case in question, the rental contract with the child was not recognised because the daughter had not actually paid any rent. Instead, the parents offset the rent against the daughter's maintenance claim and paid her only the difference in cash. This is the provision of maintenance in kind in the form of living space. There was no reduction in assets for the daughter as a tenant and no increase in assets for the parents as landlords. Since there was no paid use, the rental relationship was not recognised, and the expenses or loss were not recognised as advertising costs.

Maintenance in kind or cash maintenance

Instead of providing the child with the apartment as maintenance in kind and offsetting the rent against the child's maintenance claim, it is more tax-efficient to pay the child cash maintenance, from which they can then pay their rent for the apartment.

Currently, the Federal Fiscal Court has ruled that when renting furnished or partially furnished apartments, a furnishing surcharge must generally be applied, as such rentals are regularly associated with an increased utility value, which is often reflected in a higher local rent. However, such a furnishing surcharge should only be considered if it can be determined from a local rent index or marketable surcharges. Determination in any other way is not permitted (BFH ruling of 06.02.2018, IX R 14/17).

Note: The local rent can generally be taken from the local rent index. But what applies if there is a comparable apartment in the same building that is rented to a third party and whose rent differs from the local rent index? Should the comparison rent be used for the 50% or 66% threshold check, or still the rent index?

In October 2019, the Thuringian Finance Court ruled that for the comparison with the local market rent, the rent demanded by the landlord from a third-party tenant using a comparable apartment in the same building should be used (ruling of 22.10.2019, 3 K 316/19). An appeal was lodged against the ruling at the Federal Fiscal Court. And indeed, the landlord was successful.

According to the highest financial judges, the local market rent for checking the 66% threshold should generally be determined based on the rent index. If a rent index cannot be used or is not available, the local market rent can be determined by an expert opinion, information from a rent database, or based on the fees for at least three comparable apartments (BFH ruling of 22.02.2021, IX R 7/20).

 

(2021): Rules for renting to relatives



Reduced-rate rental: Comparative calculation with apportionable service charges

Flats are often rented to relatives at a price below the local market rate. Such discounted rental is advantageous for tax purposes because, on the one hand, only lower rental income needs to be taxed and, on the other hand, expenses can be fully deducted as income-related expenses.

There is an important change from 1 January 2021:

  • If the agreed rent is at least 66% of the local market rent, the expenses can be fully deducted as income-related expenses.
  • If the agreed rent is between 50% and 66% of the market rent, the intention to generate income must be checked, and a profit forecast is required:
  • If the profit forecast is positive, the income-related expenses can be fully deducted.
  • If the profit forecast is negative, the income-related expenses must be apportioned and can only be partially deducted.
  • If the agreed rent is less than 50% of the local market rent, the use must be divided into a paid and an unpaid part. Expenses can only be deducted as income-related expenses in proportion to the paid part.

The Federal Fiscal Court has clarified that for the comparison calculation, "local rent" means the gross rent or warm rent. Therefore, the costs that may be passed on according to the Operating Costs Ordinance must be added to the comparable net rent (BFH ruling of 10 May 2016, IX R 44/15).

The "local market rent" includes the net rent plus the apportionable costs for flats of comparable type, location, and equipment.

The costs apportionable according to the Operating Costs Ordinance include, in particular, property tax, costs for water and sewage, heating, street cleaning and waste disposal, lighting, garden maintenance, chimney cleaning, property and liability insurance, and for the caretaker (§ 2 BetrKV). Costs for maintenance and repair are not included according to § 1 BetrKV. Therefore, the warm rent paid is compared with the local warm rent (as also stated in R 21.3 EStR).

The calculation method with warm rents is more favourable for landlords than the calculation with net rents. Including operating costs is advantageous because the apportionable costs make up a significant part of the costs compared to the net rent and are regularly fully borne by the tenant even in the case of discounted rental.

Currently, the Federal Fiscal Court has ruled that when renting furnished or partially furnished flats, a furniture surcharge must generally be applied, as such rentals are regularly associated with an increased utility value, which is often reflected in a higher local rent. However, such a furniture surcharge may only be taken into account if it can be determined from a local rent index or from surcharges achievable on the market. Determination in any other way is not permitted (BFH ruling of 6 February 2018, IX R 14/17).

 

Note

The local rent can generally be found in the local rent index. But what applies if there is a comparable flat in the same building that is rented to third parties and the rent differs from the local rent index? Should the comparison rent be used for checking the 50% or 66% threshold, or still the rent index?

In October 2019, the Thuringia Finance Court ruled that for the comparison with the local market rent, the rent charged by the landlord to a third-party tenant using a comparable flat in the same building should be used (ruling of 22 October 2019, 3 K 316/19). An appeal was lodged with the Federal Fiscal Court against the ruling. And lo and behold, the landlord was successful.

According to the highest financial judges, the local market rent for checking the 66% threshold is generally to be determined based on the rent index. If a rent index cannot be used or is not available, the local market rent can be determined by an expert opinion, by information from a rent database, or by using the rents for at least three comparable flats (BFH ruling of 22 February 2021, IX R 7/20).

(2021): Reduced-rate rental: Comparative calculation with apportionable service charges



What applies to rental income from abroad?

As a rule, the foreign state where the property is located has the right to tax the income from renting and leasing (taxation in the document unit state). The foreign rental income is then tax-free in Germany but subject to the progression clause.

However, if the rental property is in an EU/EEA country, the rental income is not subject to the progression clause. Rental income from the EU/EEA does not need to be declared in the income tax return.

However, losses from renting out a foreign property in the EU/EEA cannot be claimed in the German tax return, even if they are not taken into account for tax purposes abroad (FG Baden-Württemberg of 8.7.2014, 4 K 1134/12).

Please note: An important exception applies to properties in Spain. Rental income must be declared in Germany in the "V" form. The income tax paid in Spain on the rental income can be credited against German income tax.

Rental income from third countries (non-EU/EEA countries) is fully subject to the progression clause in Germany and must be declared in the AUS form. The foreign income must then be determined according to German tax regulations. Note: The AUS form is currently not available in Lohnsteuer kompakt.

Be careful: Some double taxation agreements (e.g. with Switzerland) provide for the so-called credit method. In this case, the foreign rental income must be declared in the "V" form. The income tax paid abroad on the rental income can be credited against German income tax.

Therefore, each individual case of foreign property must be carefully examined to determine which state has the right to tax, whether the exemption or credit method applies, and whether the progression clause applies.

(2021): What applies to rental income from abroad?


Field help

Assessment value - reference number

Enter also the assessment value reference number. This is noted, for example, on your notice of assessment or real estate tax assessment. In most real estate tax assessment notices, it can be found under "Aktenzeichen der Bewertungsstelle" (Reference number of the valuation office).

Note: Please enter the assessment value reference number without special characters (e.g. "space", "/" or ".").

Space rented out for residential purposes

Enter here the living space that is allotted to living space that is rented out permanently and for a fee.

If the living space

  • occupied by the owner,
  • given to a third party free of charge,
  • rented out to relatives or
  • used as a holiday home,

enter "0.00" here.

Area rented out for commercial purposes

Enter here the space allocated to the commercially used space.

This includes, among other things, space for

  • Commercial premises
  • Offices
  • Medical practices
... used as a holiday home?

Specify whether the property was used as a holiday home.

Area of ​​the apartment (in square meters)

Enter here the living space that is allocated to living space used as a holiday home.

... rented out to family members?

Indicate whether you have rented part of the property or all the property to relatives free of charge.

The tax office examines renting to relatives in detail.

Previously applied: If the rental income is at least 66% of the local rent (incl. allocations), the transfer is fully paid and the income-related expenses are generally recognised in full by the tax office.

If, on the other hand, the actual rent is less than 66% of the usual local rent, this is considered to be a discounted or partially discounted transfer. In this case, the tax office only recognises the income-related expenses on a proportional basis, i.e. in the ratio between the actual rent and the standard local rent.

As of 1 January 2021, there is an important change:

  • If the agreed rent is at least 66% of the local market rent, the expenses are fully deductible as income-related expenses.
  • If the agreed rent is between 50% and 66% of the market rent, the intention to generate income must be examined and an income prediction is required for this purpose:
  • If the income prediction is positive, the income-related expenses are fully deductible.
  • If the income prediction is negative, the income-related expenses are to be divided and only deductible proportionally.
  • If the agreed rent is less than 50% of the local market rent, the transfer of use is to be divided into a paid and a free part. The expenses are only deductible as income-related expenses in proportion to the paid part.

Important: If the rent is at least 50 percent but less than 66 percent of the local rent, a total profit prediction test (Totalüberschussprognoseprüfung) must be carried out:

If this examination of the total profit prediction is positive, the intention to generate income is to be assumed with respect to the discounted renting of the living space and the full deduction of income-related expenses is possible.

If, on the other hand, the total profit prediction test leads to a negative result, an intention to earn income is only to be considered for the part which is rented out for payment. The income-related expenses may be deducted proportionately for the part rented out for payment.

The total profit prediction test for income from renting and leasing is carried out according to long-standing and consolidated Federal Fiscal Court (Bundesfinanzhof, BFH) case law. The Federal Ministry of Finance (BMF) letter of 8 October 2004 (BStBl 2004 I p. 933) is still relevant.

Rented area

Enter here the living space that was rented to relatives for payment.

The tax office examines renting to relatives in detail.

Previously applied: If the rental income is at least 66% of the local rent (incl. allocations), the transfer is fully paid and the income-related expenses are generally recognised in full by the tax office.

If, on the other hand, the actual rent is less than 66% of the usual local rent, this is considered to be a discounted or partially discounted transfer. In this case, the tax office only recognises the income-related expenses on a proportional basis, i.e. in the ratio between the actual rent and the standard local rent.

As of 1 January 2021, there is an important change:

  • If the agreed rent is at least 66% of the local market rent, the expenses are fully deductible as income-related expenses.
  • If the agreed rent is between 50% and 66% of the market rent, the intention to generate income must be examined and an income prediction is required for this purpose:
  • If the income prediction is positive, the income-related expenses are fully deductible.
  • If the income prediction is negative, the income-related expenses are to be divided and only deductible proportionally.
  • If the agreed rent is less than 50% of the local market rent, the transfer of use is to be divided into a paid and a free part. The expenses are only deductible as income-related expenses in proportion to the paid part.
... used by yourself or given free of charge?

Indicate whether the property was fully or partially occupied by the owner.

Important: Do not fill in "Form V" for buildings and parts of buildings used exclusively for your own residential or commercial / professional purposes.

Space used by the owner or provided free of charge

Enter here the living space that is allocated to owner-occupied residential space.

Important: For buildings and parts of buildings used exclusively for own residential purposes or own commercial/professional purposes, it is not necessary to fill in "Form V".

Type of property

Please select here the type of rented property:

  • a privately owned apartment
  • a one-family house
  • a two-family house
  • a block of flats
  • other buildings (e.g. commercial property)
Postcode

Please enter the postcode of the object.

City

Enter here the city where the object is located.

Region Here you can select whether the property is located in the old federal states (Bundesland), the new federal states or in West Berlin.

Rentals abroad:
  • In principle, the foreign state in which the property is located has the right to tax the income from renting and leasing (taxation in the state in which the property is located). If the leased property is located in an EU/EEA state (exception: Spain), the progression clause does not apply!
  • If the rental property is located in an EU/EEA country (exception: Spain), the rental income is not subject to the progression clause. Consequently, the rental income from the EU/EEA does not have to be declared in the tax return.
  • Losses from renting a property abroad cannot be claimed in the German tax return, even if they are not taken into account for tax purposes abroad (Tax Court (FG) Baden-Wuerttemberg dated 08.07.2014, 4 K 1134/12).
  • Rental income from third countries (not EU/EEA countries) is subject to the progression clause in Germany and must be declared in the Form AUS. The foreign income must then be determined in accordance with German tax regulations.
Completion date

Enter here the date of completion. The completion date is the day on which the object was ready for occupancy.

The straight-line depreciation rate depends on the time of completion. This rate is 2% if the property was completed after 31 December 1924 and 2.5% if the property was completed before 1 January 1925.

The date of sale

If the leased property has been sold or transferred, enter here the date of the legally effective, concluded, obligatory contract (this is usually the notarised sales contract) or equivalent legal act.

Was the building sold in 2021?

If the rental property was sold or transferred in 2021, enter "Yes" here.

Date of purchase

Enter here the acquisition date.

The date of acquisition is the date on which the legal ownership, benefits and burdens were transferred to you. As the acquisition date, enter the time when the property was assigned to you and you could use it. The acquisition date is therefore not necessarily the same as the date of payment.

Purchase or production

Please select whether you have purchased the object (bought) or have manufactured it (built it yourself).

Date of the purchase contract

Enter the date of the purchase contract.

The date of the purchase contract corresponds to the date of the notarial authentication, which you can find in the purchase contract.

Date of the building application

Enter here the date of the building application; the receipt stamp of the authority is the decisive date.

Construction start date

Enter here the date of the construction start. For example, the start of construction is the time when excavation work begins, the construction contract was awarded to a contractor, or construction material was delivered to the construction site.

... rented out for a short term?

Specify whether the apartment was let out on a short-term basis e.g. via internet platforms such as Airbnb, Wimdu or 9flats.com.

Important: Even those who rent the rooms of their self-used flat or house to third parties regularly earn income from rental and leasing according to section 21 Income Tax act (EStG) (BFH judgement of 4.3.2008, Ref. IX R 11/07)


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