However, the legal consequences of such a fee and tax-saving model can be drastic: firstly, the contract notarized with the too low purchase price is void as a sham transaction (Section 117 BGB). On the other hand, the parties' actions constitute an offence of tax evasion and fraud under criminal law.
In a specific case, the defendant had sold the plaintiff residential property. A purchase price of 120,000 euros was notarized, but a purchase price of 150,000 euros was actually agreed. The plaintiff had already handed over the difference of 30,000 euros to the defendant in cash before the notarization date. After the seller got cold feet, he filed a voluntary disclosure.
According to the German Federal Court of Justice (judgement of 15th March 2024, VZR 115/22), an agreement to pay undeclared money alone does not lead to the invalidity of the purchase contract as long as the main purpose of the contract is the lawful acquisition of the property. However, the intention to evade taxes should not be the main purpose of the contract. As a result, it can be assumed that the illegal money agreement in this case merely served the purpose of misrepresenting a lower purchase price to the tax authorities in order to evade taxes.
Furthermore, it was established that the formal invalidity of the verbally agreed higher purchase price was cured by the conveyance and entry in the land register. The court decision also emphasized that the regulations on nullity in the event of violations of the Act to Combat Clandestine Employment are not transferable to property purchase agreements that contain an agreement to evade taxes. The taxes must be paid in any case!