Transfer of housing as a maintenance payment

The transfer of the shared home as part of a maintenance obligation can only be taken into account as special expenses if the transfer is free of charge.

Maintenance to a divorced or permanently separated spouse can be paid not only in cash, but also in kind, often in the form of a shared home. How the transfer of the home is to be taken into account for tax purposes depends on the agreements with the partner. A special expense deduction in the amount of the local rent is only possible if the partner agrees to real splitting and the transfer is made free of charge, i.e. as a benefit in kind. The customary local rent is also to be applied if the spouses have agreed a lower housing benefit under maintenance law.

Even then, however, the notional rent to be applied must still be reduced by the housing benefit of the joint children if they also live in the rented apartment. The Federal Fiscal Court considers a housing cost share of 20 % to be justified. However, the Federal Fiscal Court has now also ruled that real splitting, i.e. the special expense deduction of maintenance with the consent of the divorced or separated partner, is out of the question anyway if the home is provided for a fee, because income from letting and leasing is then present, even if the rent is offset against the cash maintenance owed.