Eule
S a a r b r ü c k e r   B i b l i o t h e k

(http://www.jura.uni-sb.de/projekte/Bibliothek)

Erstveröffentlichung:
Studien zum vergleichenden und intenationalen Recht -
Comparative and International Law Studies,
Bd. 43, 1997, S. 157 - 176


Rudolf Wendt*

The Taxation of Land Property and Land Property Transactions




Gliederung

A.   Introduction
B.   Taxation of Land Property
 I.   Income Tax (Income from Leases and Rents)
 II.  Net Wealth (General Property) Tax
 III. Real Property Tax
 IV.  Increment-Value (Accrued Capital Gains) Tax
 V.   Building Land Tax
C.   Taxation of Land Property Transactions
 I.   Real Property Transfer Tax
 II.  Income Tax on Profits from Real Estate Sales
 III. Inheritance and Gift Tax
D.   Conclusion

Annex      

A. Introduction

Germany's System of fiscal law is characterized by a multitude of different taxes and a large variety in the forms of taxation.

The great complexity in this field of law results from its diverse historical sources. Among these are the fiscal legislation of an empire, of various kingdoms and grand duchies, the Republic of Weimar, the occupation regime after World War II and of course changing majorities in the legislature of the Federal Republic of Germany.[1] This diversity of sources that stretch over several eras has led to a system that even experts in the field of fiscal law call a tax law jungle, a chaos in need of dramatic simplification.[2]

The complexity of fiscal law is also apparent in the taxation of real property. Unfortunately, this field also lacks a dear structure and in some respects does not seem very logical or fair. Hence, different tax reforms have been suggested in order to simplify fiscal law, to achieve more fairness and to create a coherent and consistent tax code.[3] Some of the recent suggestions, especially concerning the taxation of real property, are reflected in the bill of the Federal Government for tax reform 1997.[4] This initiative will be outlined at the appropriate passages in the course of this presentation.

Although it has often been discussed, the idea of a single tax (,,impôt unique") could prevail neither in fiscal theory nor in practice.[5] The multiple tax system has a significant advantage in that the different kinds of taxation and tax concepts can complement each other. The advantages of one specific kind of tax may compensate for the disadvantages of another and vice versa. For example, not only is the actual income that the taxpayer has earned taxed but there are also taxes that consider what could have been and should have been earned, if the taxpayer had exerted himself fully.[6] This way, the Treasury does not depend on whether the taxpayer has made enough of an effort. It can count on tax revenues even if the taxpayer has attained virtually no income. However, some principles of fiscal law, like the welfare state principle, the prohibition of expropriation or the prohibition of excessive and confiscatory taxation, may lead to limitations on the imposition of these taxes.[7] In addition, a tax on potential income (e. g. ,,the net wealth tax" and ,,the real property tax") has the advantage of not depending on the market. The tax revenue will remain stable even in times of recession. On the other hand, this might lead to intolerable burdens for the taxpayer.

Certain types of taxes may be progressive and have more of a redistributive function. Others might serve to implement urban policy objectives. Then again, some taxes - in contrast to others - can be passed on. Landlords, for example, can pass on certain tax payments to tenants.[8] These taxes have the advantage of inducing less resistance from the taxpayer. Specific aspects in fiscal policy also arise from the federal state system in Germany. The municipalities, the ,,Länder" (federal states) and the federal government compete with each other for an adequate share of the total tax revenue. Each government will, of course, respectively defend those taxes from which it receives the most benefit.

All these aspects and more play a role in the field of real property taxation. They lead to a highly complicated system that in itself is inconsistent and far from ideal.[9] Some of the resulting issues and also the basic principles sustaining fiscal law in Germany shall be pointed out and explained in the following descriptions of the different types of taxes on real property and real property transactions.

B. Taxation of Real Property

In the Federal Republic of Germany the taxation of real property consists solely of taxes on the income from real property. The income tax is raised on the actual income the taxpayer has attained by leasing or renting his property. The net wealth tax and the real property tax, on the other hand, do not take into account what was really earned. Instead they tax the potential income.

A tax on unrealized capital appreciation or, in other words, an increment-value tax - that could also be classified as a tax on income from real property[10] - does not exist at present, yet it is often discussed. Finally, the building land tax that was levied in die early 1960s but soon abolished, seems worth mentioning.

I. Income Tax (Income from Leases and Rents)

According to § 2 I Nr. 6 of the German Income Tax Law (Einkommensteuergesetz [EStG]) the income from leases and rents is subject to taxation. § 21 I Nr. 1 of the Income Tax Law (EStG) includes the income from leases and rents from real property. The income tax is levied on the income the taxpayer has actually earned.[11] Therefore, it is a tax on the actual and not on the potential income.[12]

In general, the actual income is considered to be a good means of indicating a person's ability to pay.[13] Hence, the income tax meets the ,,taxable capacity principle" or put simply: the ability-to-pay principle, which furthers fiscal justice and is one of the principles sustaining fiscal law in Germany.[14] According to the Federal Constitutional Court, the principle of equity embodied in the German constitution (the ,,Grundgesetz" or Basic Law (GG]) also implies the equality of taxation. It demands that the tax burden is to be distributed among all taxpayers in accordance with their ability to pay.[15] Thereby everyone is taxed in proportion to his individual financial and economic situation.[16] Income from real property and income from other sources[17], for example income from capital (§§ 2 I Nr. 5, 20 EStG), are all subject to the income tax.

Until 1987, the economic value (value in use) of a house habitated by the owner (§§ 21 II, 21 a EStG) was also taxed. This practice, however, generated substantiated criticism.[18] Other forms of property personally used by its owner did not fall wider the income tax. In this respect the taxation of the economic value (value in use) of owner-used houses was an illfounded exception that led to inconsistencies in the system of taxation. For this reason it was abolished in 1987.[19]

Only the income attained from leasing and renting private property falls wider the category of income from leases and rents. As far as business property is concerned, the income is classified as business income (§§ 2 I Nr. 2, 15 EStG). Nevertheless, it is also subject to income taxation.[20] The income from leasing and renting real property is added to the income from other sources. Then the total is taxed at a progressive rate. First the municipalities receive a certain portion of the income tax yield (Art. 106 V GG). Then the Länder and the federal government share the rest (Art. 106 III GG).[21]

II. Net Wealth (General Property) Tax

Real property is also subject to the general property or net wealth tax.[22] Although this tax is based on the property itself, as mentioned above it is not understood to be a tax on the substance.[23] It is only meant to tax the income from property. In contrast to the income tax, however, it does not depend on the actual income but on a potential income: on what should have been earned if the taxpayer had made enough of an effort.[24]

The net wealth tax is a conventional tax with a long tradition. Its origin is to be found in the Middle Ages.[25] At that time the income tax did not yet exist because it was hard to determine the actual income.[26] More often than not it was virtually impossible to find out what actually had been earned. Property, on the other hand, provided a good indication of what might have been earned. It was tangible and therefore a good and promising subject of taxation. After the income tax was introduced, the net wealth tax continued to be a supplementary form of taxation. But ever since, its existence has been questioned.[27]

A recent decision of the Federal Constitutional Court[28] commenting on the net wealth tax has intensified the discussion.[29] In general, the Court accepted the net wealth tax as an additional form of taxation beside the income tax because both arc specifically mentioned next to each other as possible forms of taxation in the German Constitution (Art. 106 GG). Yet the court made it quite clear that the net wealth tax may not - also not in accumulation with the other taxes - lead to a taxation of the substance. It may not result in a reduction of the property itself. Otherwise it would counteract the constitutional protection of property (Art. 14GG). [30]

The court formulated another limitation on imposing the net wealth tax: Property that serves the personal needs and sustenance of the taxpayer and his family has to be exempted.[31] This exemption is of major importance for the taxation of real property. Indeed, about 40 percent of all dwellings in Germany are lived in by the owners and their families. Thus a notable portion of real property would fall under this tax exemption In order to meet the demands of the Constitutional Court the net wealth tax law must be reformed.[32]

A reform is also necessary because, presently, the net wealth tax effectively taxes real property much less than all other forms of property.[33] This is the case because the valuation of real property that is presently used to calculate the net wealth tax dates from 1964. Although revaluations were scheduled to occur every six years, since 1964 none have been carried out.[34] The real property values from 1964 were raised just once to 140 % of the original valuation (§ 121 Bewertungsgesetz - Valuation Law). In the meanwhile, the prices for real property have risen considerably.[35] This has led to an inequality in the taxation of real property in comparison to other property and thereby resulted in a breach of the constitutional demand of equality (Art. 3 1 GG).[36]

Many questions concerning the net wealth tax remain unanswered. For example, why should a person who obtained property by saving his income, on which he already had to pay the income tax, be placed at a disadvantage in comparison to someone who spent his money right away.[37]? Or, why should a form of taxation be admissible in which an accumulation of taxes, considerably burdens exactly the object which is actually supposed to achieve an income? Doesn't this lead to a breach of property rights[38] and also contravene the ability-to-pay principle of fiscal law?[39]

All of these insufficiencies and the incoherence of the net wealth tax law point to the best solution: abolishment.[40] The above mentioned bill of the Federal Government for tax reform 1997 follows this suggestion.[41] However, it remains uncertain whether this reform will be realized. The Länder are exclusively entitled to all tax yields from the net wealth tax (Art. 106 II Nr. 1 GG). Thus it is probable that they will offer some resistance to its abolishment.

III. Real Property Tax

Real property is not only subject to both the income tax and the net wealth tax. Additionally there is a special real property tax[42] raised on agricultural and forestry establishments as well as on other real property, both developed and undeveloped (§ 2 Grundsteuergesetz [GrStG] = Real Property Tax Law). Just as the net wealth tax, it does not depend on the actual income. It is a tax on the potential income. Unlike the net wealth tax though, it does not take personal circumstances into account.[43] Whether or not real property is encumbered - for example by mortgages - makes no difference.[44]

The real property tax is an even older form of taxation than the net wealth tax. The Romans first introduced it and later on it was collected by ecclesiastical and secular landlords. It came to be the main form of taxation in the Middle Ages.[45] As described above, in those times it was difficult to determine the actual income. Thus the possession of real property seemed a good indicator for the ability to pay taxes. Although the actual income is - more or less - now ascertainable and subject to income tax, the real property tax continues to be imposed. There is an old proverb in fiscal theory: Real property can't run away, so tax it.[46] This motto can however hardly serve as a justification[47] for a separate real property tax. But the so called principle of equivalence - or "benefit principle" - may offer an explanation. This principle considers the relation between tax payments and the services rendered by the beneficiary.[48] In the case of the real property tax it is the municipalities that benefit from the revenues (Art. 106 VI GG). The real property tax is understood to be a compensation for the expenses which real property owners cause for the municipalities.[49] Whether or not the principle of equivalence can justify the real property tax, remains controversial.[50]

In any case the real property tax has practically no effect on the real property market. In particular, at the present rates it cannot help to further the goal of more flexibility and movement in the market.[51] Even if the rates were to be raised, it would have the unsatisfactory result of forcing those citizens with a lower income to sell their real property.[52] The taxpayers who lease or rent their real property to others would try to pass on their tax burden to the tenants. In the end, the real property tax does not burden the income from real property. Instead it leads to a rise in the rent which the tenant has to pay. Because a living accomodation belongs to the basic subsistence, it seems problematical to burden rents with such a tax.[53] Even if these doubts are put aside, it must be absolutely clear that - just as in the case of the net wealth tax - the real property tax for constitutional reasons may not turn into a taxation of the substance."[54]

Presently the same standardized real property values that are used for the net wealth tax are applied to the real property tax. Because the actual value of real property is very much higher than the applicable standardized valuation, the triple taxation of real property by income tax, net wealth tax and real property tax does not lead to an excessive taxation.[55] On the contrary, in comparison to other forms of property real property still enjoys a privileged position.[56]

The real property tax, however, is retained. An abolishment would be very difficult because it would be vigorously opposed by its beneficiaries, the municipalities. Another reason why abolishment is unlikely is that the real property tax is generally well accepted among German taxpayers.BIII="FNR57">[57]

IV. Increment-Value Tax (Accrued Capital Gains Tax)

All of the above mentioned taxes are mainly intended to raise revenues. A form of taxation that could influence urban development and that might discourage speculation would be a tax on unrealized capital gains, a so called increment-value tax.[58]

Especially concerning real property, the taxation of unrealized capital gains has often been suggested. But in the Federal Republic of Germany it has not been put into practice. The idea behind it is that an increment-value also is a form of income[59], which in a general sense increases the ability to pay.[60] If this ability could be utilized in order to attain more flexibility in the real property market[61] - all the better! The line of argumentation is that owners obtain windfall gains without applying any effort when prices for real property increase. If these gains were taxed, it might render speculation less profitable. The owners would not be tempted to hoard their real property.[62] this might further an equalization of supply and demand.

A special way to skim off part of an increment-value arising from changes in land use regulations and development of public infrastructure is to collect a development gains charge. As I gather from Mr. Jae-Young Son's midterm report, this method is applied as a land policy tool in Korea. In German municipalities different regulations exist that pass a portion of development costs on to property owners benefitted by the development.[63] In this context Prof. von Hoffmann has already told us about the contribution real property owners are required to pay in order to bear a share of the expenses for the development of public infrastructure (§§ 127-135 Baugesetzbuch [BauGB] = Code on Construction). Prof. Robbers has mentioned the levy that is to be paid on the increment-value of real property arising from its location in a formally declared "reconstruction" or development area (§ 154 BauGB). A general development gains charge as such, however, which might encourage more effective land development by the local governments does not exist.[64]

During the Weimar Republic through World War II a regular increment-value tax was used in Germany. If anything, though, an association with those times serves as a deterrent for a re-imposition of this tax.[65] But there are also other founded reservations.[66] It is predictable that speculators would easily be able to pass on the tax burden to the purchaser. They would still make considerable profits. And prices for real property would increase to an even higher extent than currently. On the other hand, long term real property owners could not pass on the tax to others. Owners with a lower income would be affected most severely.[67]

A general danger is that an increment-value tax might effectively tax the substance of the property rather than an ,,income" which it generates. This would violate the constitutional protection of property (Art. 14 GG). A differentiation becomes necessary.[68] If the increment-value results from a veritable change in the quality of the estate - for example by a change in land use regulations -, the owner has obtained an effective, an actual profit. One could say that his taxable capacity has grown. A tax on the obtained profit would generally not put him in an any worse a position than if the change in land use regulations - that he was not entitled to in the first place - had never occured. That means: The increment-value resulting from a change in the quality of the estate could, in principle, be taxed. of course there would have to be exceptions: The law would have to take into account, whether the single proprietor is really in a position to profit from the change in the quality of the estate and whether it can be expected of him to do so. A proprietor who has used his estate according to the old land use regulations may not be forced to tear down his old house in order to profit from the new land use regulations. This would also violate the constitutional protection of property. If the increment-value is caused solely by fluctuations in the real property market, the owner has obtained no real or substantial profit. He would have to fall back upon the substance of his property to pay the tax and might be forced to sell his real estate. Thus the taxation of unrealized capital gains which were not brought about by a change in the quality of the real estate itself disregard the constitutional protection of property. Examined wider the constitutional demand of equality (Art. 3 I GG), an increment-value tax applying only to real property but not to other forms of property seems problematic. Possibly though, if the tax was a necessary means of intervent ion in order to realize certain land policy goals, an inequality in taxation could be justified.

However, the increment-value tax remains highly controversial and up to now it could prevail neither in theory nor in practice.

V. Building Land Tax

During 1961 and 1962 a tax was imposed on real property which land use regulations had designated as building land but which remained nonetheless undeveloped.[69] The tax intended to improve urban development and encourage building activities.[70] Real property owners who were not interested in building or those who had purely speculative motives were supposed to be induced to sell their estates. By 1964, the tax was abolished. The abolishment applied retroactively to 1963 as well. [71] In practice the tax had not attained the desired effects. Instead, owners of real property who used their estate as a garden or who still had problems financing their building project were forced to sell their property.[72] Besides, the building land tax led to a farther complication of the already very complex system of taxation.[73] The constitutionality of such a law is questionable, moreover, when all real property owners are burdened with a tax that can achieve the desired goal in only very few instances. Its political aim as such, however, was found to be in accordance with the constitution.[74] Different models of a building land tax remain in discussion.[75] If it could have a positive effect on the real property market and reduce the housing shortage, it might be worth another thought.

C. Taxation of Land Property Transations

Taxes are also imposed when real property transactions take place. The real property transfer tax, the income tax on capital gains from real property sales and the Inheritance and Gift tax shall be dealt with in this context.

I. Real Property Transfer Tax

The Real Property Transfer tax[76] is classified as a special form of turnover or sales tax and as a particular transaction tax.[77] In contrast to the general turnover tax which only applies to business taxpayers, the real property transfer tax also taxes turnover by private individuals. Once turnover is taxed by the real property transfer tax though, it is excluded from the general turnover tax (§ 4 Nr. 9 a Umsatzsteuergesetz [UStG] =Turnover Tax Law).[78] The tax base for the real property transfer tax is the value of the consideration given by the purchaser with respect to the acquisition (§ 8 1 Grunderwerbsteuergesetz [GrEStG] = Real Property Transfer Tax Law). If there is no such consideration or if it can not be determined, the standardized valuation of the estate is used as a base (§§ 8 II, 10 GrEStG).

The low rate of the real property transfer tax seems worth mentioning. It has remained at only two percent after being reduced from seven percent in exchange for the elimination of numerous exemptions in 1983.[79]

A general justification for transaction taxes is that they are profitable sources of tax income.[80] It is also argued that the state should benefit from the consideration resulting from the reassessment of commercial or economic goods.[81] Because the expenditure of assets in general - in this case the expenditure for an acquisition of real property - can be interpreted as an indication of fiscal capacity, the real property transfer tax can also be explained by the ability-to-pay principle.[82] Beneficiaries of the real property transfer tax are the Länder (Art. 106 II Nr. 4 GG).

II. Income Tax on Profits from Real Estate Sales

Income tax on profits from real estate sales is collected only when the income can be classified as business income, income from agriculture and forestry or income from independent personal services (§ 2 1 Nrn. 1-3 Einkommensteuergesetz [EStG]). Consequently income from selling real estate classified as private or personal property is generally not subject to taxation.[83]

This exemption is of special significance considering the steep price rises real property can experience. The differential tax treatment of private and business property has been criticized as unfair.[84] In other countries like the United States or France capital gains from selling private property are also subject to taxation.[85] The differentiation in Germany, though, seems to take into account that the income from selling private property was not attained in the field of professional trade or business undertaken for profit.[86] The sale of self-used real property is of a different nature because it belongs to the private sphere of the vendor. But whether the profits from selling real property that was rented or leased should be subject to the income tax, is a topic of discussion. Rented or leased property is a source of income for the landlord. Thus it no longer belongs to his private sphere - it is meant to obtain profits. Hence, for reasons of equality, profits from sales of private, but leased or rented real property should also fall wider the income tax.[87]

An exception of the general tax exemption for profits from sales of private property is made if less than two years he between the purchase and the sale of the real estate (§§ 22 Nr. 2, 23 1 Nr. 1 a EStG). In this case, speculative motives are assumed. This assumption is irrefutable.[88] Even counter-evidence is irrelevant. So profits from selling real property acquired less than two years ago are fiscally equated to profits attained in a business context. They both are subject to the income tax.

III. Inheritance and Gift Tax

Real property constitutes a large percentage of property altogether. Thus a large share of inheritance consists of real property, which as such is subject to the Inheritance and Gift tax. The inherited assets themselves are not meant to be taxed, but rather the enrichment the heir has experienced.[89] A taxation can be justified by the ability-to-pay principle and by its redistributive function.[90] But the Inheritance and Gift tax must observe constitutional restrictions (Art. 14 I 1 GG). It may not turn the state - in this case the benefiting Länder - into the actual heir of the inherited real property. The economic and legal content of inheritance must be preserved.[91] Whenever the tax applies to family members, the property for personal use must be exempted.[92]

Concerning real property, the Inheritance and Gift tax violates the constitutional demand of equality in the same way in which the net wealth tax does. The same obsolete valuation is used for real property in both cases. Because real property is significantly undervalued, it enjoys a considerable privilege in taxation. The heirs of other forms of property have a much heavier tax burden and are placed at a disadvantage.[93] For this reason the Federal Constitutional Court has recently criticized the obsolete, standardized valuation of real property and has called for reform.[94] The Federal Government has tried to meet the requirements of the Court in its bill for tax reform l997.[95] In addition to an abolishment of the net wealth tax, it suggests a new, more realistic and balanced form of valuation of real property.[96] If it succeeds, this will have a great impact on the Inheritance and Gift tax for real property.

The constitution demands that the testator's personal property falling within the sphere of family use, be exempted from the inheritance tax.[97] As a result the bill would raise personal allowances for spouses and children.[98] The allowance for spouses is presently 250 000 DM. According to the bill for tax reform 1997, the allowance is supposed to be increased to 1 000 000 DM and will apply retroactively to January 1996. The allowance for children is supposed to increase from 90 000 DM to 750000 DM.

This means that children would generally still not have to pay taxes when inheriting their parents' houses.[99] The tax burden would increase significantly though, when real property is inherited from Aunts or Uncles and especially in cases of inheritances from unrelated persons.

Depending on the amount of Opposition, there still could be some changes in the bill for tax reform 1997. The general direction however, is set. According to the decision of the Federal Constitutional Court, a reform of the Inheritance and Gift tax must take place by the end of December 1996.[100]

D. Conclusion

A comparison of real property taxation between Korea and Germany proves to be an interesting subject. By learning about the differences - different perceptions and perspectives, different attempts to realize certain policy goals - and also by leering about the similarities, both parties can gain new perspectives - even of their own system of taxation.

One must bear in mind, however, how different the political and social situations are in both countries. Consequently, different policy goals find importance. Whereas in Germany taxes on real property are almost exclusively designed to raise revenues, in Korea the influence on urban development and the reduction of speculation seem to be prominent issues. Although the prices for real property have increased steadily over the last decades in Germany, they have never risen as fast and to such an extent as in Korea. And land-ownership concentrations as found in Korea during the eighties, are unheard of in Germany. The rapid urbanization Korea has experienced recently also makes a difference in the approach of taxation. Social or political stability was never endangered in Germany by real property issues. Certainly though, the principles sustaining the system of fiscal law in each country will show similarities - albeit with emphasis on different areas. An exchange of ideas can only be profitable.




Annex

Building Land TaxBaulandsteuer
Development Gains ChargePlanungswertausgleich
Income TaxEinkommensteuer
Increment-Value TaxWertzuwachssteuer
Inheritance and Gift TaxErbschaft- und Schenkungsteuer
Net Wealth (General Property) TaxVermögensteuer
Real Property TaxGrundsteuer
Real Property Transfer TaxGrunderwerbsteuer



Zum ANFANG des Dokuments


Fußnoten

* I would like to thank my assistant Bridget von Trützschler Mahoney for her valuable collaboration and contribution to this presentation.

[1] Klaus Tipke, Die Steuerrechtsordnung II, 1993, p. 1044.

[2] Tipke, supra note 1, at 519; also Tipke, Vom Konglomerat herkömmlicher Steuern zum System gerechter Steuern, BB 1994, 438 (438); Deutsche Steuergewerkschaft, DStG 1986, 11; 1987, 88; H. G. Senger, Stbg 1986, 311(312).

[3] See Tipke, Über die Einheit der Steuerrechtsordnung, in: Staat-Wirtschaft-Steuern, Festschrift für Karl Heinrich Friauf zum 65. Geburtstag (ed. Wendt/Höfling/Karpen/Oldiges), 1996, p. 741 ff.; Tipke, Steuerrechtswissenschaft und Steuersystem, in: Verfassung - Verwaltung - Finanzen, Festschrift für Gerhard Wacke zum 70. Geburtstag (ed. Vogel/Tipke), 1972, p. 211 ff.; see also Tipke, Steuerrecht, 14. ed. 1994, p. 60; Rudolf Wendt, Neuordnung des Einkommensteuerrechts, DÖV 1988, 710 ff.

[4] Gesetzentwurf der Bundesregierung: Entwurf eines Jahressteuergesetzes 1997, BRatsDrs. 390/96 vom 24. 5. 96.

[5] Klaus Tipke, Steuerrecht, 11. ed. 1987, p. 79.

[6] Tipke, in: Festschrift für Wacke, supra note 3, at 215.

[7] Tiple, Steuerrecht, 14. ed., p. 108 and 112 f.; for exemption from taxation for the subsistence level (living wage) see BVerfGE 82, 60 (85 ff.); 87, 153 (169 ff.); Wendt, supra note 3, at 720; Wendt, Familienbesteuerung und Grundgesetz, in: Die Steuerrechtsordnung in: der Diskussion - Festschrift für Klaus Tipke zum 70. Geburtstag (ed. Lang), 1995, p. 47 (50).

[8] Tipke, in: Festschrift für Wacke, supra note 3, at 220.

[9] See Wendt, supra note 3, at 710 if.

[10] Tipke, Steuerrecht, 11. cd., p. 77

[11] Heinrich Weber-Grellet, in: Franz Klein (ed.), Lexikon des Rechts - Steuer- und Finanzrecht, 2. cd. 1993, p. 149 f.

[12] Georg Crezelius, Steuerrecht II, Die einzelnen Steuerarten, 2. ed., 1994, p. 23 f.

[13] Tipke, in: Festschrift für Wacke, supra note 3, at 215.

[14] Tipke, Steuerrecht, 14. ed., p. 77.

[15] E.g. BVerfGE 61, 319 (343 f.); 82 (60, 86).

[16] See already Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, first published in 1776, German edition by H. Recktenwald: Der Wohlstand der Nationen, 1990, p. 703.

[17] Tipke, Steuerrecht, 14. ed., p. 211 f. and p. 370 ff.

[18] Paul Kirchhof, Die Steuerwerte des Grundbesitzes,1985, p. 73.

[19] Pros and Cons, in: Tipke, Steuerrecht, 10. ed., p. 179 f.

[20] Crezelius, supra note 11, at 130.

[21] See Weber-Grellet, supra note 11, at 130

[22] For questions regarding terminology See Tipke, Steuerrechtsordnung II, supra note 1, p. 760 and also Tipke, Steuerrecht, 11. ed., p. XLIV, 408; Committee on Fiscal Affairs and the ad hoc Group on Urban Problems, Taxes on Immovable Property, 1983, p. 103.

[23] Tipke, in: Festschrift für Wacke, supra note 3, at 218; Wendt, Besteuerung und Eigentum, NJW 1980, 2111 (2117).

[24] Tipke, in: Festschrift für Wacke, supra note 3, at 215.

[25] Tipke, BB 1994, supra note 2, at 441.

[26] See Tipke, in: Festschrift für Friauf, supra note 3, at 743.

[27] For new contributions to the discussion see eg. Heike Göbel, Die Vermögensteuer muß fallen, FAZ 25 June 1996, p. 13; detailed arguments in: Klaus Schelle, Vermögensteuer - Ein Störfaktor im Steuersystem (ed. Karl-Bräuer-Institut des Bundes der Steuerzahler - 71), 1990.

[28] BVerfGE 93, 121 (from 22 June 1996) = ZIP 1995, 1337.

[29] Günther Felix, Konsequenzen aus den Entscheidungen des Bundesverfassungsgerichts zur Vermögens- und Erbschaftsbesteuerung, BB 1995, 2241 ff; Klaus Tipke, Über die Grenzen der Vermögensteuer - zugleich Besprechung des BVerfG-Beschlusses vom 22. 6. 1995, GmbHR 1996, 8 ff.

[30] See Wendt, NJW 1980, supra note 23, at 2167; Wendt, in: Grundgesetz, Kommentar (ed. M. Sachs), 1996, Rn. 145 ff.

[31] BVerfGE 93, 121(141); See Wendt, in: Grundgesetz, supra note 30, at Rn. 147; Tipke, GmbHR 1996, supra note 29, at 10.

[32] See Christian Mayer, Der Umfang der Nachbesserungspflicht des Gesetzgebers bei der Vermögens-, Erbschafts- und Schenkungsbesteuerung - Konsequenzen aus den Beschlüssen des BVerfG vom 22. 6. 1995, DB 1995, 1831; Rolf Dettmer, in: Lexikon des Rechts, supra note 11, at 598.

[33] Dirgit Ufermann, Jahressteuergesetz 1997, Forschung und Lehre 1996, 388.

[34] Reinhard Pietsch, Einheitswert - Quo vadis?, UVR 1992, 236 ff.

[35] See Pietsch, supra note 34, at 236.

[36] Tipke, supra note 2, at 441.

[37] Tipke, BB 1994, supra note 2, at 441.

[38] Wendt, NJW 1980, supra note 23, at 2117

[39] Tipke, in: Festschrift für Wacke, supra note 3, at 218 f.; Tipke, Steuerrechtsordnung II, supra note 1, at 775 ff.; Schelle, supra note 27, at 38 ff.

[40] Tipke, GmbHR 1996, supra note 29, at 14; Tipke, in: Festschrift für Friauf; supra note 3, at 745 and 750; Schelle, supra note 27, at 55; Dietrich Meyding, Überlegungen zur möglichen Abschaffung der Vermögensteuer und der Einheitsbewertung, DStR 1991, 1269 ff.; Göbel, supra note 27.

[41] BRatsDrs. 390/96, supra note 4, on front page and at p. 5; see also: Stellungnahme der Bundessteuerberaterkammer zum Entwurf des EStG 1997 - Umsetzung der Beschlüsse des BVerfG zur Vermögen- und Erbschaltsteuer, DStR 1996, 1116 (1116).

[42] For a general short and systematic overview see Organisation for Economic Co-Operation and Development (ed.), Taxes on Immovable Property, supra note 22, at 102 ff.

[43] Tipke, Steuerrechtsordnung II, supra note 1, at 817.

[44] See Crezelius, supra note 12, at 445.

[45] Rainer Thies, in: Lexikon des Rechts, supra note 11, at 249; Tipke, BB 1994, supra note 2, at 441.

[46] Tipke, in: Festschrift für Friauf, supra note 3, at 751.

[47] For a detailed discussion of a possible justification see: Tipke, Steuerrechtsordnung, supra note 1, at 809 ff.

[48] See Crezelius, supra note 12, at 446; Joachim Lang, Entwurf eines Steuergesetzbuchs, BMF-Schriftenreihe Heft 49, 1993, p. 217.

[49] Lang, supra note 48, at 217; Crezelius, supra note 12, at 446.

[50] For contra-arguments see Tipke, BB 1994, supra note 2, at 441; Tipke, Steuerrechtsordnung II, supra note 1, at 809.

[51] Tipke, Steuerrechtsordnung II, supra note l, at 813.

[52] Tipke, Steuerrechtsordnung II, supra note l, at 813.

[53] Tipke, Steuerrechtsordnung II, supra note l, at 819.

[54] See Wendt, NJW 1980, supra note 23, at 2117; Tipke, in: Festschrift für Wacke, supra note 3, at 220.

[55] Tipke, Steuerrechtsordnung II, supra note l, at 814.

[56] For a comparison of actual values and standardized values see: Meyding, supra note 40, at1271.

[57] Crezelius, supra note 12, at 446.

[58] See Carl S. Shoup, in: Handbuch der Finanzwissenschaft, 2. Bd., 1956, p. 521.

[59] Tipke, Steuerrecht, 11. ed., p. 76.

[60] Karl Heinrich Friauf Steuergesetzgebung als Instrument der Bodenordnung - Zur Diskussion über die Einführung einer Bodenwertzuwachssteuer und eines Planungswertausgleichs, DVBL 1972, 652 (657).

[61] Kilian Bizer, Flächenbesteuerung mit ökologischen Lenkungswirkungen, NuR 1995, 385 (387); Helmut Mohl/Frank Steinfort, Abgaben auf Grundstücke und Gebäude als bodenpolitisches Instrument, ZKF 1993, 170 (173).

[62] Günther Zink, Die Probleme einer Wertzuwachsbesteuerung, StuW 1973, 150 (153).

[63] Franz Angermann, Die Abschöpfling planungsbedingter Bodengewinne aus steuerrechtlicher Sicht, DB 1995, 2443.

[64] Interesting arguments against a development gains charge by Walter Leisner, Städtebauliche Entwicklungsmaßnahmen und Eigentum Privater, NVwZ 1993, 935 (940).

[65] Mohl/Steinfort, supra note 61, at 174.

[66] For a discussion see Herbert Ruck, Die Problematik der Besteuerung des Bodenwertzuwachses, BB 1973, 1037 ff.; Bernhard Ostendorf, Einführung einer Bodenwertzuwachssteuer - Aufhebung der Grundgewerbsteuer und Wegfall der einkommensteuerlichen Erfassung von Bodengewinnen, FR 1971, 137 ff.

[67] Friauf supra note 60, at 657.

[68] Friauf supra note 60, at 657 f

[69] See Mohl/Steinfort, supra note 61, at 172.

[70] Bizer, supra note 61, at 388.

[71] Mohl/Steinfort, supra note 61, at 172.

[72] Pietsch, supra note 34, at 240; Wolf-Dietrich Drosdzol, Baulandsteuer und Bodenwertsteuer - Neue Perspektiven für die Grundsteuer?, DStZ 1994, 205.

[73] Drosdzol, supra note 72, at 206.

[74] See BFH, BStBl. II 1968, 620 (626).

[75] Drosdzo1, supra note 72; Mohl/Steinfort, supra note 61, at 172.

[76] For a general overview see OECD, supra note 22, at 105.

[77] Tipke, Steuerrechtsordnung II, supra note 1, at 937; Crezelius, supra note 12, at 435.

[78] Tipke, Festschrift für Friauf, supra note 3, at 751.

[79] Tipke, Steuerrecht, 14. ed., p. 599

[80] Tipke, Steuerrecht, 14. ed., p. 600.

[81] Paul Kirchhof, Empfiehlt es sich, das Einkommensteuerrecht zur Beseitigung von Ungleichbehandlungen und zur Vereinfachung neu zu ordnen? Gutachten F für den 57. Deutschen Juristentag, 1988, at F 13; cf. "Bewertungsgedanke" by Mirre.

[82] Wendt, NJW 1980, supra note 23, at 2118.

[83] Wendt, DÖV 1988, supra note 3, at 717; see Tipke, Steuerrecht, 14. ed., p. 385.

[84] Under the aspect of the principle of equality: Tipke, Steuerrecht, 14. ed., p. 249.

[85] Tipke, Steuerrecht, 14. ed., p. 249.

[86] See Wendt, DÖV 1988, supra note 3 , at 717

[87] Wendt, DÖV 1988, supra note 3, at 717; Kirchhof, supra note 81, at F 31.

[88] Tipke, Steuerrecht, 14. ed., p. 384; BVerfGE 26, 302 ff.

[89] Suse Martin, in: Lexikon des Rechts, supra note 11, at 164.

[90] Tipke, Steuerrechtsordnung II, p. 745 ff., 749; Tipke, in: Festschrift für Wacke, supra note 3, at 217.

[91] Paul Kirchhof, Die Rechtsprechung des Bundesverfassungsgerichts zur Vermögen- und Erbschaftsteuer, Stbg 1996, 1 (5).

[92] Kirchhof, supra note 92, at 5.

[93] Tipke, Steuerrechtsordnung II, p. 755.

[94] BVerfGE 93, 121 from June 1996; cf Meyding, supra note 40; Dirk Krüger/Eberhard Kalbfleisch/Stefan Köhler, Die Entscheidungen des Bundesverfassungsgerichts zu den Einheitswerten - Analyse und erste Beratungshinweise, DStR 1995, 1452 (1454); Karl-Georg Loritz, Verfassungsrechtlicher Rahmen für eine vernünftige Neubewertung des Grundbesitzes, DStR 1995, Beiheft zu Heft 8.

[95] BRatsDrs. 390/96, supra note 4, at 5 ff.

[96] Typified real property valuation composed of land and building values; cf. Stellungnahme der Bundessteuerberaterkammer, supra note 40, at 1116.

[97] Stellungnahme der Bundessteuerberaterkammer, supra note 41, at 1117.

[98] BRatsDrs. 390/96, supra note 4, p. 18 ff.

[99] BRatsDrs. 390/96, supra note 4; according to the decision of the Bundestag (parliament) dating from the 7 November 1996 the allowance for spouses is to be 600 000 DM, the allowance for children 400 000 DM.

[100] BVerfGE 93, 121 (141).

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