In its ruling dated 10.4.2024 (Ro 2023/16/0013), the VwGH dealt with the calculation of the land registration fee in the event of exceptional circumstances when a purchase price below the market price is agreed.
In general, the assessment basis for the land registration fee pursuant to Section 26 para. 1 GGG is the value of the right to be registered, i.e. generally the market value. In certain cases, however, particularly in the case of a purchase agreement, the consideration is to be used as the basis of assessment in accordance with Section 26 para. 3 GGG. However, this only applies if there are no exceptional circumstances that have evidently had an influence on the consideration, so that the consideration obviously does not correspond to the price achievable on the open market.
In the case in question, the buyer was able to purchase an apartment including a parking space at a lower price, as he had an “entitlement” to such apartments and fulfilled and complied with the stipulated criteria. In the opinion of the BVwG, these are precisely such exceptional circumstances that prevent the consideration from being used as the basis of assessment for the land registration fee, so that the calculation must be based on the market value in accordance with § 10 BewG. The VwGH confirmed this legal opinion and dismissed the appeal as unsubstantiated.
Conclusion: The land registration fee is not always to be calculated on the basis of the purchase price, even in the case of purchase agreements. If there are exceptional circumstances that result in the agreed purchase price being below market value, the market value is to be used as the basis of assessment instead.
