Commentary on the Judgment of the Supreme Administrative Court of 15 November 2022, III FSK 1082/21

Abstract

In the judgment commented on above, the NSA held that the reserved portion reduces the taxable base for inheritance and gift tax if the beneficiary of the reserved portion applies for its realisation in a specified amount. According to the NSA, an unrealised, i.e., potential right to claim a benefit of an unspecified value, does not yet constitute an inheritance debt. This position is incorrect. The succession debt arises from the opening of the estate. For the creation of an inheritance debt, whether and when the beneficiary applies for its satisfaction is irrelevant.