The danube dynamics of the real estate transfer tax

MacGregor Pelikánová, Radka; Jánošíková, Petra Article The danube dynamics of the real estate transfer tax DANUBE: Law, Economics and Social Issues Review Provided in Cooperation with: European Association Comenius (EACO), Brno Suggested Citation: MacGregor Pelikánová, Radka; Jánošíková, Petra (2017) : The danube dynamics of the real estate transfer tax, DANUBE: Law, Economics and Social Issues Review, ISSN 1804-8285, De Gruyter, Warsaw, Vol. 8, Iss. 4, pp. 191-206, https://doi.org/10.1515/danb-2017-0013 This Version is available at: https://hdl.handle.net/10419/184532 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. 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If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. https://creativecommons.org/licenses/by-nc-nd/4.0 DANUBE: Law, Economics and Social Issues Review, 8 (4), 191–206 DOI: 10.1515/danb-2017-0013 191 THE DANUBE DYNAMICS OF THE REAL ESTATE TRANSFER TAX Radka MacGregor Pelikánová1, Petra Jánošíková2 Abstract The real estate transfer tax was introduced by the Habsburgs in the 19th century and has remained an integral part of the tax system of almost all countries historically belonging to their Danube monarchy. One century after the monarchy’s collapse, their common roots as well as national particularities can be observed. The goal of this paper is to confirm or reject the proposed hypothesis that the real estate transfer tax and its rate in post-Danube monarchy countries reflects more general public policies and preferences than neutral fiscal needs as suggested by GDP, GDP/capita, government debt/GDP, tax revenue/GDP, etc. The critical, genesis reflecting and comparative meta-analysis of the information about the dynamics of the evaluating regimes of the real estate transfer tax leads to the conclusion in the form of the confirmation of the proposed hypothesis, especially regarding the Czech Republic, making real estate transfer tax conceptually more a political than a fiscal instrument and posing a set of Socratic style questions inviting further research. Keywords Real Estate Transfer Tax, Tax Law, Habsburg Monarchy, State Budget I. Introduction Most developed countries tax the change of ownership of real estate and the trio – inheritance tax, gift tax and transfer tax regarding real estate – is included in the majority of national tax systems, including those of Central Europe.3Although the revenue from the transfer tax is about 1% of the total state budget revenues in OECD countries, it is considered critical and is the subject of an intense debate involving economic, legal and social arguments.4 1University of West Bohemia in Pilsen, Faculty of Law, Department of Business Law, Sady Pětatřicátníků 14, 306 14 Pilsen, Czech Republic. E-mail: [email protected]. 2University of West Bohemia in Pilsen Faculty of Law, Department of Financial Law and National Economy, Sady Pětatřicátníků 14, 306 14 Pilsen, Czech Republic. E-mail: smrzo[email protected]. 3Růžičková & MacGregor (2014). 4Japalli et al. (2014). 192 Radka MacGregor Pelikánová, Petra Jánošíková: The Danube Dynamics of the Real Estate Transfer Tax The real estate transfer tax is classified as a transfer tax and, according to fiscal theory, belongs in the category of direct property tax. Allegedly, the main reason for the existence of a transfer tax, including real estate transfer tax, is stability of revenues, i.e. their yields remain basically constant and independent from economic cycles and represent 1–2% of national budget revenues. Thus, real estate transfer tax should be a strong, stable and politically rather neutral fiscal instrument assuring constant revenue for the state budget. At the same time, it must be kept in mind that real estate transfer tax is a tax imposed in the case of the transfer of real estate and thus it should be considered that the global crisis, which began in 2007, is past, although real estate indicators appear not yet restored5 and the current demographic decline with the simultaneous rise of modern IS/IT seems to make the real estate recovery even harder.6Interestingly, real estate transfer tax was introduced during the Habsburg monarchy, over a century before the global crisis of 2007. Its roots go back to the period immediately following the accession of the Lands of the Bohemian Crown, i.e. Bohemia, Moravia, Silesia and Lusatia, by the election by the Bohemian diet in 1526 in combination of the consideration of hereditary dynastic links. Namely, in 1534, Ferdinand I introduced an indirect sales tax.7Under Maria Theresa, further steps towards the real estate transfer tax were completed, i.e. pursuant to the advice of Count Friedrich Wilhelm von Haugwitz and Gerard van Swieten, Maria Theresa promulgated a set of financial and educational reforms oriented to increase the general reach and efficiency of the fiscal system,8i.e. the Patent from June 6, 1759, introducing an inheritance tax, a gift duty and the so-called tax equivalent. In other words, the transfer tax triad well known to many recent fiscal systems, including the Czech and Slovak fiscal systems. Real estate transfer tax was introduced in the Habsburg monarchy by Act No. 50/1850, on duties from legal acts, documents and administrative acts from February 8, 1850, i.e. GebührenG 1850. The tax rate for a real estate transfer between unrelated third parties was originally 3.5%,9later on progressively between 3% and 4%,10 of the sale price,11 while the tax rate for inheritance and gifts was 1.5%. GebührenG 1850 was influenced by the French enregistrement and conceptually was founded on a multitude of tax duties, such as real estate transfer tax and inheritance tax.12 Interestingly, GebührenG 1850, was paralleled by Patent Act 329 from August 2, 1850, for Hungary, respectively, after the Austro-Hungarian Compromise of 1867, Ausgleich, for the Eastern part, Transleithania. The real estate transfer tax was further regulated by Act 74/1901 on real estate transfer fees, i.e. GGeVer 1901.13 5Hajnal (2015). 6Cvik & MacGregor (2016). 7Falada, D., Starý, M. (2009). 8Szabo, F. A. J. (1994). 9TP 106 A Z 1 lit a GebührenG 1850, RGBl 1850 / 50. 10 VwGH 5. 1. 1907, 14.002 /1906, VwSlg 5023 f /1907 , RGBl 1901/74 , RGBl 1899/158 , etc. 11 Kofler, G. (2014). 12 Poslanecká sněmovna Parlamentu ČR (2012). 13 Das Gesetz, betreffend Gebüren von Vermögensübertragungen, RGBl 1901 / 74. DANUBE: Law, Economics and Social Issues Review, 8 (4), 191–206 DOI: 10.1515/danb-2017-0013 193 Hence, until 1918 both parts of the dual monarchy, Cisleithanai and Transleithania, followed fundamentally the same real estate transfer tax regime. Various surcharges were addedandthen abolished, and nominallythetax rate forthe real estate transfer taxremained up to 4% in Cisleithanai and 5% for Transleithania.14 During the First World War, a registration fee, Eintragungsgebühr, was added to the real estate transfer tax by the Kaiser Ordnung [DB1]on justice fees RGBl 1915/279, i.e. Kaiserliche Verordnung über die Gerichtsgebühren. The registration fee was originally a fixed amount. By the end of the First World War, inheritance tax and real estate transfer tax were well known and commonly used across the entire European continent. As mentioned above, the real estate transfer tax rate was between 3% and 5% in the Danube dual monarchy. However, it reached 4% in Russia, 4.8% in Italy, 7% in France and 8.5% in the Netherlands. It is worthwhile to note that the real estate transfer tax rate was only 4% in Germany, with a possible reduction to 2% or even to 0% in the case of a transfer in the direct family line, while the rate was increased to 6% in the case of speculative transfers of real estate. Despite Germany and, to a lesser degree Austria, achieving huge victories in the spring of 1918, the ultimate defeat of the Central Powers in 1918 and the general exhaustion of resources led to the utter collapse of the Danube dual monarchy, from whose debris a number of war-decimated states arose. It is highly illustrative to observe, describe and critically compare how these states (Austria, the Czech Republic, the Slovak Republic, Poland, Hungary, Italy and Romania) have modified the, originally unified, real estate transfer tax regime and, especially, whether they use it as a neutral and stable source of constant revenue independent of economic cycles, or whether they use it rather for various political reasons and public policies than as a strictly neutral fiscal instrument. After the necessary preamble regarding the historical context, the comparison focusses especially on the current data, namely real estate transfer tax rate and GDP, GDP/capita, state budget deficit or surplus and the general level of taxation as tax revenue/GDP in those states sharing the Danube dual monarchy history and ultimately also their legal and economic roots. Although these states have dramatically different GDP, GDP/capita as well as state budget deficit, the real estate transfer tax rate has not departed too far from that of the original Danube dual monarchy. Nevertheless, there are differences and, as suggested, these differences can hardly be explained by the macro-economic data. As a matter of fact, the goal of this paper is to confirm or reject the proposed hypothesis that the real estate transfer tax and its rate in post-Danube monarchy countries reflects the more general public policies and preferences than neutral fiscal needs, as suggested by the GDP, GDP/capita, Government debt/GDP, the Tax Revenue/GDP, etc. The underlying motivation is to reach a deeper understanding of the conceptual and practical context and to enhance the capacity to appreciate the inherent complexity and set the real estate transfer tax regime in an effective, efficient and legitimate manner. Indeed, in 2016, conceptually the real estate transfer tax and its rate are strongly shaped by the demands of various state and government policies and interests, perhaps even more than by neutral fiscal demand. 14 Poslanecká sněmovna Parlamentu ČR (2012). 194 Radka MacGregor Pelikánová, Petra Jánošíková: The Danube Dynamics of the Real Estate Transfer Tax Even more interestingly, these various states and governments and policies and interests are typically very particular for the given state, i.e. each state has different ones. Indeed, the Danube dynamics of the evolution of the real estate transfer tax teaches us about much more than just dry fiscal theories. II. Austria – the journey from 3.5% to 3.5% with the court system subsidy In Austria, the real estate transfer tax, Grunderwerbsteuer, followed the Danube dual monarchy patterns until the annexation of Austria by Germany, Anschluss, in 1938. The German Drittes Reich brought a change of the real estate transfer tax by the German Act, Grunderwerbsteuer Gesetz 1940 – GrEStG 1940,15 which abolished the GebührenG 1850. According to GrEStG 1940, the real estate transfer tax rate was set at 3% for deals between unrelated parties.16 This German Act GrEStG 1940 survived the Second World War in Austria and was valid for an additional ten years, i.e. until its abolition by the Austrian Act GrEStG 1955.17 In (West) Germany it lasted even longer and the exemptions and exonerations from the German GrEStG 1940 passed even into the German GrEStG 1983. The Austrian Act GrEStG 1955 increased, by means of its Art. 14, the real estate transfer tax rate for deals between unrelated parties to 7% or even 8%. Three decades later, the Austrian Act GrEStG 1955 was replaced by another Austrian Act GrEStG 1987,18 which has been modified and in its updated versions is valid until the present day. Art. 7 GrEStG 1987 decreased the real estate transfer tax rate for deals between unrelated parties to exactly the same percentage as did the very first Act, GebührenG 1850, i.e. 3.5%, of which 96% of the proceeds goes to the local government and administration and the remaining 4% goes to the state government and administration. Further, GrEStG 1987 decreased the rate to 2% for real estate transfers between relatives and put the gift tax (deals when the consideration is 30% or less of the value of the real estate value), inheritance tax and real estate transfer tax in contextual co-relation. Table 1: Rate of gift tax, inheritance tax and real estate transfer tax in Austria Gift tax 0.5% for the first 2% for the next 3.5% for higher EUR 250,000 EUR 150,000 amounts Inheritance tax 2% Real estate transfer tax 2% for deals between 3.5% in all other relatives cases Source: Prepared by authors based on the GrEStG 1987 15 Sigloch (1983). 16 Kofler, 2014. 17 Grunderwerbsteuergesetz BGBl. Nr. 140/1955 (GrEStG 1955) – Zwar nicht formell aufgehoben, aber aus dokumentalistischen Gründen wurde ein Außerkrafttretedatum gesetzt (vgl. BGBl. Nr. 309/1987) – Retrieved December 30, 2016, from https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Bundesnormen&Dokumentnummer=NOR12160566. 18 Grunderwerbsteuergesetz BGBl. Nr. 309/1987 (GrEStG 1987), Bundesgesetz vom 2. Juli 1987 betreffend die Erhebung einer Grunderwerbsteuer. Retrieved December 30, 2016, from https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10004531 and https://de.wikipedia.org/wiki/Grunderwerbsteuer (%C3%96sterreich). DANUBE: Law, Economics and Social Issues Review, 8 (4), 191–206 DOI: 10.1515/danb-2017-0013 195 However, it needs to be pointed out that, in addition to the real estate transfer tax, Grunderwerbsteuer, the acquisition of Austrian real estate is subject to another public payment duty – the registration fee, Eintragungsgebühr, of 1.1%. The duality of the real estate transfer tax and registration fee is the product of historical evolution and political reasons, public policies and perhaps even preferences. Currently, it is the subject of legitimate criticism. Indeed, real estate transfer tax can be justified by its consumption reach and is not to be integrated in the turnover tax system. However, there are strong public law and political arguments against the registration fee, Eintragungsgebühr, of 1.1%. Perhaps the strongest objection targets the assignment of the proceeds, namely the breach of the equivalency and balance principle, because almost 80% of the proceeds of the registration fees go to cover court system expenses, i.e. the big bulk of the proceeds of the duty linked to the transfer of real estate finance covers the expenses of something completely unrelated to real estate and its transfers.19 This information needs to be placed in the context of OECD statistics, according to which the Austrian land transfer tax, belonging in the category 4400, brought in EUR 1,014 million in 2015.20 III. Czech Republic – after indirect expropriation back to 3–4% The Czechoslovakian Republic was constitutionally established on the debris of the Danube by Act. No. 11/1918 Coll., on establishing the independent Czechoslovakian state. Since its Art. 2 officially proclaimed the temporary continuity of the entire preexisting law, the Cisleithanai tax system, including GebührenG 1850 and GGeVer 1901, remained valid and in force.21 Over time, several legislative modifications were added, such as Act No. 31/1920 Coll., on war surcharges, setting in its Art. 2 the rate of 2% for real estate transfers between relatives and a progressive rate for other real estate transfers, i.e. 4% (value up to CZK 10,000) or 4.5% (value from CZK 10,000 to CZK 20,000), etc. and reaching even 7%.22 This temporary feature became basically permanent because this legal regulation lasted through the entire existence of the First Czechoslovakian Republic and even beyond. The new system was introduced by the post-Stalinist communist regime by Act No. 26/1957 Coll., on notarial fees, and thus, from 1957 to 1993, Czech transfer taxes were collected via notarial fees.23 Art. 11–13 regulated the duties and fees to be paid in cases of inheritance, gifts or other acts. The fee had to be paid even in cases of the transfer from the personal or private ownership into socialist ownership. The selection of the payor was ideologically self-explanatory – the payor was the acquirer except for the transfer into socialist ownership, i.e. the socialist institution did not pay any fee and instead the entire fee was reversed to the transferring person. In this context, it does not surprise one that the 19 Kofler (2014). 20 OECD (2015). 21 Jánošíková (2015), p. 89–109. 22 Zákon č. 31/1920 Sb., kterým se nově upravují válečné přirážky k poplatkům a mění některá ustanovení o poplatcích. Retrieved December 30, 2016, from http://www.beck-online.cz/bo/chapterview-document.seam?documentId=onrf6mjzgiyf6mzrfuya. 23 Andrlík (2010). 196 Radka MacGregor Pelikánová, Petra Jánošíková: The Danube Dynamics of the Real Estate Transfer Tax fee rate was very high – indeed, the communists hated the concept of ownership and deeply believed that it would evaporate; if not by itself, then they would succeed in destroying it. Hence, the real estate transfer fee was between 6% and 13% and in the case of deals covering traditional (normal) ownership, i.e. private ownership, the rate was increased by an additional 2%. Boldly, what communists did not manage to expropriate or to obtain by a “free” gift to themselves, was subject to a 15% transfer fee and hence after six sales of the same piece of real estate, its entire value was collected as the proceeds of the fee tax. Although Act No. 26/1957 Coll., on notarial fees was replaced by Act No. 24/1964 Coll., on notarial fees, and this Act was later replaced by Act No. 146/1984 Coll., on notarial fees, basically nothing conceptually changed; the rates remained similar, with just a touch of progression added. After the Velvet Revolution, the real estate tax system was significantly modified and Act No. 201/1990 Coll., on notarial fees, which brought in a large rate going from 1% to 20%, a number of exemptions, and a switch in the payor – to the transferor. The return from the notarial fee to tax was completed by Act No. 357/1992 Coll., on inheritance, gift, and real estate transfer tax, which among other things reduced the rate to 3% while keeping the transferor as its payor. However, in 2013 the rate was increased to 4%. Certainly, Czech law has been far from stable. Act No. 357/1992 Coll., on inheritance, gift, and real estate transfer tax, has significantly contributed to this bad reputation of unpredictability and non-conceptuality, since it was, during the two decades of its existence, legislatively modified and updated 52 times and the Supreme Administrative Court and Constitutional Court had to make almost 500 judgments dealing with this Act and its interpretation and application, and even led to its ultimate cancellation. Senate Measure No. 340/2013 Coll., on real estate acquisition tax, ended the ongoing patching and brought about a new regime reflecting the re-codification of Czech private law, which brought back the principle “superficies solo cedit”. This last legislative contribution should make the real estate transfer tax, now called the real estate acquisition tax, less bureaucratic and more effective and efficient. The rate stays at 4% and already one legislative amendment was performed through Act No. 254/2016 Coll. Well, the near future will show how stable, effective and efficient this system is. It is highly interesting that there are only a few voices, in academia as well as in the parliament, calling for the reduction or even abolition of the real estate acquisition tax. These few academic opinions against the real estate transfer tax underline the fact that transfer taxes reduce the accumulation of wealth and thus have a function to impose social equality, i.e. they again tax already taxed income and so represent double taxation.24 Sadly, these well-founded opinions are either overlooked or underplayed by stating that double taxation is normal and omnipresent.25 These few political opinions against the real estate transfer tax came generally from rightist parties, e.g. according to the leader of the ODS, Petr Fiala, real estate transfer tax means double taxation, which is not acceptable and which hurts many layers of society, such as young families wanting to purchase their dwelling. However, these words came in 2015, i.e. when the ODS was in opposition, and Fiala’s proposal to abolish the real estate transfer 24 Široký et al. (2008). 25 Prabhakar (2008). DANUBE: Law, Economics and Social Issues Review, 8 (4), 191–206 DOI: 10.1515/danb-2017-0013 197 tax was already rejected in the first reading, as was a follow-up proposal by another ODS deputy, Vladislav Vilímec, to at least reduce its rate to 2% or 3%. The government of social democrat Bohuslav Sobotka replied that “the proceeds from the real estate transfer tax are a stable revenue for public finances and this tax is transparent, easy to be proven, simple to manage and difficult to be evaded”.26 Transfer taxes are perceived as independent of economic cycles and generally providing constant revenues,27 and thus it is often implied that real estate transfer tax revenue is stable regardless of the conjuncture and recession curves. However, it must be stressed that a real estate transfer tax is a tax paid upon the transfer, i.e. highly critical are real estate sales cycles, which do not fully match economic cycles. Indeed, real estate sales cycles are hardly predictable. In addition, the processing of the collection of real estate transfer tax represents an extremely busy red-tape job. So, it is true that a real estate transfer tax is difficult to evade, as long as no assets deal mechanisms are employed (transfer of all shares of a company owning real estate), but the very collection is a busy administrative work demanding important state administration resources. Indeed, Table 2 below shows that Czech revenues from the real estate transfer tax are far from either being stable nor in correlation with all revenue and it can be suggested that there are clear indices of independency from Czech economic cycles. Table 2: Comparison of the Czech state budgets Total revenues and real estate transfer tax (RETT) in 1995, 2000, 2015 and 2016 in bill. CZK Fiscal Year 1993 1995 2000 2005 2010 2015 2016 Revenues 358 439.97 586.2 866.46 1000.38 1 234.5 1 281.6 RETT 0.62 2.77 5.44 7.49 7.34 11.2 12.9 RETT/Revenues 0.2% 0.6% 0.9% 0.9% 0.7% 0.9% 1% Source: Prepared by authors based on the Andrlík (2010) and Žurovec (2017) Hence, a real estate transfer tax neither brings stable revenues nor is it administratively light. Thus, the only true justification, or better to say explanation, is that it is easy to prove it. It is extremely sad that even the government admits that they collect a certain type of tax at a much higher rate than abroad just because the tax administration manages to prove this tax duty and not other tax duties. In order to show even more that the raison d’ˆ etre of a real estate transfer tax is the policy misconception by the government and parliament and the incapacity of the tax administration, then it is worth noting key public finance figures. Pursuant to OECD statistics, Czech real property tax, belonging in the category 4400, brought in CZK 11,566 million in 2015 (OECD, 2015), while the state budget notably did not end in a massive deficit. Also, revenues in 2016 reached CZK 1,281.6 billion, while the expenses were only CZK 1,219.8 billion, i.e. the surplus for 2016 reached CZK 61.8 billion. This is a unique result, both in the current Danube large sphere, as well as in Czech history. Indeed, the 26 Hovorka & Váchal (2016). 27 Andrlík (2010). 198 Radka MacGregor Pelikánová, Petra Jánošíková: The Danube Dynamics of the Real Estate Transfer Tax last budget surplus occurred in the Czech Republic in 1995 and this surplus was definitely less than the current CZK 61.8 billion. A myriad of factors contributed to the exceptional Czech budget surplus for 2016 – including important state savings as well as “EU money” and higher revenues than expected. Economic growth, very low unemployment and perhaps increased efficiency played a critical role. Nevertheless, the fact that the collected revenue was, by CZK 100.8 billion, higher than what was planned might suggest that the planning was not sufficiently exact and that the state drive for revenue and its collection is going maybe too far. The figures regarding property taxes look even more unbalanced, because they were collected in the amount of CZK 12.5 billion and this was not only CZK 2.2 billion more than what was planned, but in addition this was a 100% annual increase, since the collected transfer taxes for 2015 were only CZK 6.8 billion. This category also includes the real estate transfer tax, which, in 2016, brought in CZK 1.7 billion more than in 2015 – a 15% increase.28 Boldly, the state took great advantage of economic growth, low mortgage rates and the consumer’s eagerness to go ahead with their real estate purchases before the new (allegedly pro-consumer) legislation took effect. Table 3 below shows that the big budget surplus in 2016 got 1% of its revenue from real estate tax while collecting 15% more than in 2015. The question then emerges – was it necessary to take advantage of consumers who were pushed to go ahead with real estate deals? By the way, the budget surplus only occurred in 2016 when the real estate tax brought in 1% of revenues (the highest ratio real estate transfer tax/revenues) and in 1993–1995 when the real estate tax brought in 0.2–0.6% (the lowest ratio real estate transfer tax/revenues)! Indeed, there is neither a clear trend nor correlation between the revenues, RETT, and the budget deficit or surplus. Hence, the alleged reasons for a real estate transfer tax collapse, as does the myth about its neutrality. This brings about a legitimate question – do we really need to have, and should we really have, any real estate transfer tax? If yes, is it necessary to keep the high rate of 4% and mercilessly collect it from all, especially from those buying homes for their growing families or moving to other towns to keep their jobs or frenetically going ahead with a real estate deal in the fear that, in the near future, they will not manage to obtain a mortgage, due, e.g., to the 15% down payment requirement? Table 3: Comparison of the final accounts of the Czech state budgets in 2015 and 2016 Fiscal Year 2015 2016 Comparison Revenues CZK 1,234.5 bill. CZK 1,281.6 bill. 3.8% growth Result −CZK 62.8 bill. +CZK 61.8 bill. 100% turn! Real Estate Transfer Tax CZK 11.2 bill. 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