The Federal Fiscal Court has further developed its case law on the requirements for an item of everyday use (Section 23 (1) sentence 1 no. 2 sentence 2 EStG). It has ruled that the profit or loss from the sale of high-priced assets for everyday use is also not taxable as a private sale transaction.
Practical example:
The plaintiffs (husband and wife) bought a mobile home for approximately € 323,000. They rented it out on a daily basis to a GmbH, of which the plaintiff is a shareholder. The rest of the time, the mobile home was available to the plaintiffs for private use. The tax office allocated the rental income to other income (Section 22 no. 3 EStG). The depreciation of the mobile home led to losses which, however, were not deductible but could only have been offset against future rental profits.
Less than a year after the purchase, the plaintiffs sold the motorhome at a loss. Despite this, the tax office calculated a profit from a private sale transaction (= speculative transaction in accordance with Section 23 EStG). The profit was made by adding back the depreciation. The tax court was of the opinion that the mobile home was an object of daily use, so that the facts of a private sale transaction were excluded.
The BFH rejected the tax office's appeal. In the opinion of the BFH, items of daily use include assets that, from an objective point of view, were acquired primarily for use and are subject to depreciation or have no potential to increase in value.
Objects of daily use are subject to not subject to speculation tax. Even if they are items of daily use, daily use is not required. This means that assets that are considered by the average observer to be high-priced or luxury goods can also fall under this term. Furthermore, there are no strong indications in the wording of the law and in the legislator's explanatory memorandum that an „item of daily use“ requires exclusive personal use of the asset. It is therefore irrelevant that the plaintiffs had also used the mobile home as a source of income (rental).