Er der et retskrav på at anvende værdiansættelsescirkulæret ved overdragelse af fast ejendom i dødsbo og levende live

Marianne Riber Rasmussen & Rikke Skov

Student thesis: Master executive thesis

Abstract

When an immovable property is conveyed between close family members or in estates the conveyance is regulated by the rules of the Property Tax Act. according to the rules the immovable property must be valued at market value.
The Valuation Circular No. 185 of 17 November 1982 determines that if the valuation of the immovable property made by the parties or the estate is between -15 % to +15 % of the public property value the tax authorities must accept the valuation. The public property valuation system was suspended in 2013 and especially because of rising market prices of properties it soon became at question of whether the 15 % rule could still be used.
In 2016 we got the Supreme Court judgment, SKM2016.279.HR, in which the Court ruled that the tax authorities must accept a valuation made by the 15 % rule, unless there were special circumstances. The case concerned an estate and the judgment said nothing about the rules while alive.
This judgment resulted in several new questions: How should the concept of “special circumstances” be determined, and in which situations would such special circumstances occur? Furthermore, should the rules be interpreted in the same way while alive as in estates? In the following years several cases have been submitted to the courts and the tax authorities have sent out a draft control signal which should be guidelines to determine “special circumstances”.
This spring we got an important judgment, SKM2021.267.HR, which ruled that the special circumstances must be conditions relating the specific immovable property. In June we got another important judgment, SKM2021.345.VLR, which ruled that the judgment, SKM2016.279.HR, applies in estates and while alive.
After the two judgements The Tax Council has sent out 18 binding answers about “special circumstances”.
By using the legal dogmatic method, we will determine applicable law when immovable property is conveyed between close family members and in estates.
The main question of this Master´s Thesis is: “Is there a legal requirement to apply the Valuation Circular No. 185 of 17 November 1982, when conveying an immovable property in estates and while alive?”.
The conclusion is: There is a legal requirement to use the 15 % rule, unless there are special circumstances relating conditions at the specific immovable property.
To determine special circumstances, it must be examined whether a holding point exits. Our analysis has shown that holding points are: An existing market price of the immovable property, mortgages, valuation made by a real estate agent, gifts to other children and given up inheritance.
Significant improvements of the immovable property might be a holding point.
Conditions by similar immovable properties in the same geographic area such as rate of return and price statistics will not be able to constitute special circumstances. When a holding point for special circumstances is identified it needs to be clarified whether the holding point is strong enough. The price difference between the holding point and the valuation by using the Valuation Circular, and the temporal context, must be taken into account.
Our analysis shows that if the price difference per year is less than 20 % per year, the circumstances are not special, and the valuation will be accepted by the tax authorities. The temporal context must be significant to determine special circumstances. If the time difference were more than 3½ years, The Tax Council found that the Valuation Circular could be used. The tax authorities consider both the percentual price difference and the absolute difference, and they
empathize that the decisions are made based on an overall concrete assessment.
We look forward to seeing judgements from the courts. Two cases will be decided in court in the near future, SKM2018.551.LSR og SKM2021.345.VLR.

EducationsMaster i Skat, (Executive Master Programme) Final Thesis
LanguageDanish
Publication date2021
Number of pages80
SupervisorsJane Bolander