Offsetting Against Only Future Claims for Equalization of Marital Gains Makes the Transfer of Real Property a Purchase

Property transfers as part of the equalization of marital gains—as a payment in lieu of performance—may constitute an acquisition for the acquiring spouse under § 23 EStG. The Lower Saxony Fiscal Court (judgment of March 16, 2026) even holds this to be the case if the transfer is offset against a claim for equalization of accrued gains that will arise in the future. This article examines the court’s key arguments and the practical risk that a sale occurring within ten years of the transfer may be subject to income tax even if the community of accrued gains has not been dissolved.