On 28.7.2021 (IX R 25/19), the BFH ruled that buildings can be depreciated over a shorter actual useful life contrary to Section 7 EStG. Taxpayers can use any method of proof that appears suitable in the individual case as necessary evidence to assert the shorter useful life, provided that conclusions can be drawn about the relevant factors (e.g. technical wear and tear, economic depreciation, legal restrictions on use).
In a letter dated 22.2.2023, the tax authorities commented on the principles of case law and supported the above-mentioned BFH ruling with a non-application decree. In the administrative instruction, the BMF stated, among other things, that proof of a shorter actual useful life within the meaning of Section 7 para. 4 sentence 2 EStG must be provided by submitting an expert opinion from a publicly appointed and sworn expert for the valuation of developed and undeveloped properties or from persons who have been certified by a DIN EN ISO/IEC 17024 accredited body as experts or appraisers for the valuation of properties in accordance with the relevant standard.
The BMF has this restrictive letters for the depreciation of buildings according to the shorter actual useful life now canceled.
Conclusion: By revoking its letter dated 22.2.2023, the tax authorities have declared the principles of the BFH ruling dated 28.7.2021 (IX R 25/19) to be generally applicable. Consequence is that you any appropriate method of presentation can be used to prove a shorter actual useful life of the building.