Facts
The case concerns a trustee who, together with his brother, was a co-owner of a residential and commercial building. The trustee had operated his trust office in an apartment of the building and paid rent to the estate community for it. When abandoning his self-employment, the tax administration wanted to tax the trustee's share in the property as a transfer of business assets to private assets.
The Federal Court concluded that the property was private assets. Although the trustee had made depreciation on the property in the accounts of the estate community, which is generally only permissible for business assets, the Federal Court saw this as contradictory behaviour of the trustee, as he had declared the property as private assets in the tax return. Based on the principle of good faith, the trustee had to accept the unjustified depreciation against him until the abandonment of his self-employment, insofar as they could not be corrected in a still pending assessment procedure.
Considerations
The Federal Court stated that the rental of one's own properties is generally part of the usual administration of private assets and cannot…