In its decision dated 23.5.2024 (RV/3100241/2024), the BFG ruled on the applicability of the main residence exemption in the context of the sale of an apartment if more than one third of the apartment was rented out.
The main residence exemption under Section 30 para. 2 no. 1 EStG is linked to the technical terms “Eigenheim” (owner-occupied home) and “Eigentumswohnung” (condominium), which are defined in Section 18 para. 1 no. 3 lit b EStG. Accordingly, properties must serve residential purposes for at least two thirds of their total usable area in order to meet this definition. This means that a maximum of one third of the total usable area may be used for other purposes (e.g. business purposes or income generation through rental).
In its decision, the BFG followed the view of the tax authorities, according to which this limitation is not only relevant for owner-occupied homes, but also for condominiums. The one-third limit must therefore always be observed when claiming the main residence exemption. If this limit is exceeded, the benefit must be denied.
The BFG did not allow an appeal to the VwGH as there was no unresolved legal issue.
