Even within a marriage, each spouse retains their own assets if the statutory matrimonial property regime of ‘community of accrued gains’ has been agreed. This applies to most marriages in Germany. Assets acquired during the marriage also belong to the spouse who acquired them. The same applies to funds held in bank accounts. Consequently, the transfer of an individual account or securities account to the other spouse constitutes a transaction subject to gift tax.
It makes no difference whether the accounts are domestic or foreign. The Federal Fiscal Court (BFH) recently ruled on a case involving a Swiss individual account and securities account that the husband had transferred to his wife. It is true that, in private law, individual accounts may also be jointly owned by both spouses. In such a case, the taxable gain would amount to only half of the balance. However, the burden of proof in this regard lies with the spouses.
In the case in question, a power of attorney for the wife’s bank account was not sufficient proof that half of the balance was attributable to her prior to the transfer. Rather, it would be necessary for both spouses to make deposits into the account and for the balance to be attributable to both of them.
It is therefore essential to exercise the utmost caution when transferring accounts. If in doubt, you should seek expert advice.