Under the Real Estate Transfer Tax Act (section 18 (1) sentence 1 no. 1 GrEStG), notaries are obliged to notify the real estate transfer tax office of the relevant tax office of contracts relating to the sale of a domestic property within two weeks of notarization. At the same time and independently of the notary's duty of notification, the contracting parties, as the party liable for the real estate transfer tax, must also notify the tax office of the real estate contract (Section 19 GrEStG).
If a notary does not comply with his duty to notify within the two-week period stipulated by law, he may no application for reinstatement in accordance with § 110 of the German Fiscal Code (AO).
Practical example:
The plaintiff (notary) notarized an inheritance distribution agreement between siblings (the plaintiffs in proceedings II R 20/23 and 21/23). The estate included GmbH shareholdings which held domestic real estate. The notary notified the tax office of the notarization, but not within the two-week deadline. Nor did the siblings notify the tax office in good time. As a result, the siblings reversed the division of the estate. This led to the question of whether the real estate transfer tax incurred for the inheritance settlement agreement could not be assessed due to the reversal. A prerequisite for the non-assessment would have been, among other things, that the inheritance settlement agreement had been notified to the tax office within the two-week period, whereby a timely notification by the notary could have worked in favor of the siblings in this case. The notary therefore applied to the tax office for reinstatement in accordance with § 110 AO with regard to the notarial notification deadline. The application was rejected by the tax office. The tax court also did not grant the notary reinstatement.
The BFH agreed with the opinion of the tax court. The notary cannot make such an application because she is not a „person“ within the meaning of § 110 sentence 1 AO. Only the taxpayers involved in the real estate transfer tax proceedings - in the case in dispute the siblings - belong to the group of persons entitled to file an application. Only these can submit an application for reinstatement in accordance with § 19 GrEStG with regard to the deadline they have missed. The notary, on the other hand, is not involved in the real estate transfer tax procedure. He fulfills his own obligation to the tax office with the notification pursuant to § 18 para. 1 sentence 1 no. 1 GrEStG.
Consequence: In this case, the notary is not liable for any omission - neither to the taxpayer nor to the tax office.
Important! Taxpayers should be aware of their own duty of notification in accordance with § 19 GrEStG and notify the tax office of notarized property contracts in good time themselves and independently of the notary's notification.