Transfer of losses from commercial activity to the otherwise asset-managing activity of a civil-law partnership (GbR)

In its ruling of 30 June 2022, published on 27 October 2022, the IV Senate of the BFH, abandoning the legal opinion expressed in its ruling of 12 April 2018, IV R 5/15, BFHE 261, 157, BStBl II 2020, 118, marginal no. 34 et seq. on section 15(3) no. 1 EStG old version. The Federal Tax Court (Bundesfinanzhof, BFH) ruled, in accordance with the interpretation of the law advocated by the Federal Tax Court, that losses from a commercial activity (in the case in question, losses from the operation of a photovoltaic system) do not preclude a reclassification of the otherwise asset-managing activity of a GbR if the so-called de minimis threshold is exceeded. The lateral effect of § 15, para. 3, no. 1, sentence 1, alternative 1 and sentence 2, alternative 1 EStG in the version of the WElektroMobFördG (EStG n.F.) is not to be restricted for mixed-activity asset-managing partnerships to a greater extent than has been the case to date for mixed-activity self-employed partnerships. § Section 15(3) no. 1 sentence 1 alternative 1 and sentence 2 alternative 1 and section 52(23) sentence 1 EStG n.F. are constitutional. BFH, Judgment of 30 June 2022, IV R 42/19