Gianfranco Gambaro

The concept of a professional real estate dealer under real estate gains tax law is based on the same concept as that used in case law and practice regarding income taxes. The only distinction is that, for the purposes of real estate gains taxation, this concept must also be applied mutatis mutandis to legal entities. The tax implications under real estate gains tax are the opposite: While being classified as a dealer in income taxation leads to a massive tax and social security burden, the same classification under real estate gains tax grants only tax relief. It is hardly surprising that one and the same concept has developed in different directions. This article discusses the latest developments, the extent to which they differ in both areas of law, and what a publication on practical application can achieve.

Real estate companies have an incentive to shift as much profit as possible from the “real estate gain” tax category into the realm of income tax. Instead of handling the purchase of the property, the development of the site, and the subsequent marketing through a single company, these functions are divided among various companies within a corporate group. This paper highlights the associated problems of profit shifting and suggests possible solutions.

Workshop on "Carve-outs and Real Estate Transactions" by Maxim Dolder and Gianfranco Gambaro on the occasion of the ISIS seminar "Current Tax Topics in M&A Transactions" on March 21, 2024.