Problem
The plaintiffs generated income from the rental and leasing of several residential properties. In the context of their income tax return, the plaintiffs determined the depreciation for the rented buildings not on the basis of the typified useful life, but on the basis of a shorter useful life, which had been determined on the basis of private expert opinions. The appraisals were carried out by a publicly appointed and sworn expert certified in accordance with DIN EN ISO/IEC 17024. The appraiser had determined the respective market value for the individual properties on the basis of the German Real Estate Appraisal Ordinance (ImmoWertV), whereby the respective state of modernization was also included in the valuation.
The tax office did not accept the appraisal because no specific circumstances had been named as to why the respective rental properties would actually have a shorter or longer useful life. Value-relevant structural damage and construction defects were not listed in the appraisals. Contrary to what the expert stated, a shorter useful life of the buildings could not be assumed if modernization work had to be carried out in the future.
Solution
The Münster Fiscal Court (FG) disagrees with the view of the tax office. In principle, it is up to the taxpayer to prove a shorter actual remaining useful life in the individual case. The decisive factor is that the method of proof allows conclusions to be drawn about the determinants (determinants) to be determined - e.g. technical wear and tear, economic devaluation, legal restrictions on use. The greatest possible probability of a shorter actual useful life must be demonstrated.