What is included in capital gains?
Income from self-employment also includes profit from the sale of a freelance practice, office or corresponding assets, an independent part of the assets, or a share in the assets. A sale also includes the closure of a practice, office, etc. (Section 18 (3) EStG). For tax purposes, the capital gain is treated according to special rules and must therefore be distinguished from the current profit.
Anyone who sells or closes their business or partnership share can take advantage of two important tax benefits:
- Capital gains allowance: The capital gain is tax-free up to 45.000 Euro. However, this amount is reduced if the capital gain exceeds 136.000 Euro, by the excess amount. Therefore, the capital gains allowance is no longer available from a capital gain of 181.000 Euro (Section 16 (4) EStG).
- Reduced tax rate: The capital gain remaining after deduction of the allowance is subject to the favourable tax treatment under the one-fifth rule. Upon request, it can also be taxed at a reduced rate, namely at 56% of the average tax rate and at least 14% (Section 34 (3) EStG).
The capital gains allowance and the reduced tax rate are only granted under certain conditions:
- You must be at least 55 years old or permanently occupationally disabled in the sense of social security law.
- You can only claim the benefits once in your lifetime: the capital gains allowance from 1996, the reduced tax rate from 2001.
- You must apply for the benefits.
If the business is sold before the age of 55, without being permanently occupationally disabled, only the one-fifth rule applies. However, this rule does not result in any tax savings if current income is already taxed at the top tax rate.
When selling a partnership share, you are also entitled to the full capital gains allowance, not just a proportionate amount. However, if you only sell a part of your partnership share, the capital gain is considered current income, and neither the capital gains allowance nor the reduced tax rate or the one-fifth rule apply (Section 18 (3) in conjunction with Section 16 (1) sentence 2 EStG).
To prove permanent occupational disability, a notice from the pension insurance provider or a medical certificate is usually sufficient. This can also be done by a private insurance company if their conditions meet a certain threshold for occupational disability. However, it has been established that there are other ways to prove permanent occupational disability (BFH ruling of 14.12.2022, X R 10/21).
