Distance flat rate
With the distance lump sum , commonly known as commuter lump sum , the expenses for journeys between home and first place of work are lumped in German income tax law . The distance lump sum reduces the taxable income in accordance with EStG . The lump sum can be claimed by all employees and, via (5) No. 6 EStG, also by self-employed persons , regardless of the amount of the actual expenses and regardless of whether they are on foot, by bike, motorcycle or public transport or get to work by car.
Determination of the flat rate
The flat rate for distance is only to be set for the days on which the employee visits the workplace . The flat rate is only set once for each working day, even if additional trips were made due to a break in working hours lasting several hours. In addition, only the full kilometers of the one-way distance are taken into account, so that the return trip is covered. Commenced kilometers of the route are not taken into account. There is a maximum limit of 4,500 € in the calendar year . A higher amount can be asserted if the employee has used his own vehicle or a vehicle made available for use or, in the case of public transport, can substantiate or prove higher expenses ( Paragraph 1 No. 4 and Paragraph 2 EStG).
Amount of the flat rate
Since the calendar year 2004 is traveling allowance in the amount of € 0.30 granted for every full kilometer distance.
Previously one was in the calendar years 2001 to 2003 traveling allowance in the amount of € 0.36 for each count the first ten kilometers Distance and 0.40 € for each additional kilometer of distance.
As part of the climate package which was traveling allowance from 21 km distance for the years 2021 to 2023 to € 0.35 and for the years 2024 to 2026 increased to € 0.38. In addition, a mobility bonus will be granted for low-income earners in the period 2021–2026 .
Although the employee is fundamentally free to choose where to take his home and whether to drive to work from a main or secondary residence , trips from a more distant home are only taken into account for tax purposes if this represents the local focus of the employee's vital interests and is not only visited occasionally ( Paragraph 1 No. 4 Sentence 6 EStG).
The focus of life's interests is not necessarily the main residence, and although the legal reporting conditions are an indication, the tax authorities are not bound by this determination. In the case of married workers, the center of vital interests is usually where the family lives. In the case of single people, there is a presumption that the local center of their vital interests is at the place of their home, from which they mainly go to work. Where a single person actually has the center of his life is determined by the personal relationships to this place and the way in which these relationships are maintained (e.g. through special personal ties to people, associations and other activities). However, the focus of life always assumes that the employee stays there regularly.
The distance between home and business, as well as the reasons for taking up residence at a more distant place, are irrelevant. However, the more distant apartment must not be a second home that is only used on weekends and during holidays.
Means of transport
In contrast to the mileage allowance that used to apply, the distance allowance can be claimed regardless of the means of transport used. This means that it does not only apply to motorists and motorcyclists, but also to users of trains, trams, buses, boats, bicycles and pedestrians. There is an exception for the use of an airplane or a taxi.
If you receive a tax-free job ticket from your employer , you have to adjust the distance allowance by the value of the job ticket.
The law basically bases the calculation on the distance kilometers of the shortest road connection between home and workplace. A road connection other than the shortest can be used as a basis if it is obviously more convenient and is used regularly by the employee. A connection is more convenient for transport if the workplace can be reached faster and more punctually through it - despite occasional traffic disruptions.
Development of the flat rate
Hardly any tax regulation has been subject to such fundamental changes as the regulations on the costs of travel between home and work. In the first income tax laws, the legislators did not provide for a tax deduction for travel expenses to work. Nonetheless, this was successfully fought for in courts around the turn of the century, because (as the Prussian Higher Administrative Court argued, for example) "if the acquirer does not go to his job, he earns nothing". For the first time with the Income Tax Act of 1920, the “necessary costs” were expressly permitted to be deducted by law. As a rule, only the costs of using public transport were considered necessary for a normal employee. It was not until 1955 that the Federal Fiscal Court recognized car costs as necessary due to increasing motorization and a lump sum of DM 0.50 per kilometer was allowed to be deducted for a maximum of 40 kilometers when using one's own vehicle . From 1967 the mileage allowance was reduced to 0.36 DM for reasons of transport policy , in 1989 it was raised to 0.43 DM due to increased costs due to the increase in mineral oil tax and from 1990 to 0.50 DM. In the assessment period 1991 the kilometer flat rate was 0.58 DM and in the assessment periods 1992 and 1993 0.65 DM each. From 1994 (after a renewed increase in the mineral oil tax) 0.70 DM per kilometer was deductible and the expenses for the use of public transport could be deducted can be claimed in the actual amount to reduce tax. Since the tax assessment period 2001 there has been a flat rate independent of transport in the form of EStG. In 2001–2003 it was € 0.36 for the first ten kilometers and € 0.40 for each additional kilometer, and has been reduced to € 0.30 per kilometer since 2004.
Which came with the beginning of 2007 into force factory gate principle the property as income-related expenses from. Commuters were not allowed to claim a flat-rate travel allowance or the actual costs. Commuters who travel a particularly long working day were able to claim the flat-rate distance allowance of € 0.30 from the 21st kilometer “like business expenses”. The Federal Constitutional Court declared these changes to be unconstitutional on December 9, 2008 and called for a retroactive legal revision. With the “Act to continue the legal situation in 2006 for the distance flat rate”, this new regulation was implemented and the legal situation that was in force before 2007 was restored.para. 2 ITA said the trips to and from the workplace with reference to the
Distance lump sum and constitutional law
Fundamental decision of the Federal Constitutional Court from 1969
The first fundamental decision of the Federal Constitutional Court on the distance flat rate was issued on October 2, 1969. The subject of the dispute was the reduction of the flat rate to a level slightly below the actual costs. The Federal Constitutional Court declared this change in the law to be compatible with the constitution. The steering purpose of promoting the use of public transport was declared appropriate to justify the unequal treatment of taxpayers brought about by the change in the law . Despite the reduction of the flat rate to a level slightly below the actual costs, the constitutional performance principle was not violated, as the legislature is entitled to a broader scope for design.
Fundamental decision of the Federal Constitutional Court of 2008
In 2007, Development of the flat rate ).(2) EStG was changed in such a way that, according to sentence 1, travel expenses to work could no longer be claimed as income-related expenses and, according to sentence 2, a flat rate of € 0.30 from the 21st kilometer, not as income-related expenses, but only “like business expenses” was tax deductible (see →
The Federal Constitutional Court ruled on December 9, 2008 that this version of(2) sentence 1 and sentence 2 EStG is unconstitutional.
The background to this is that, in the interest of constitutionally required tax equality , the legislature must ensure that taxpayers with the same ability are taxed equally high (horizontal tax fairness), while the taxation of higher incomes must be appropriate compared to the tax burden of lower incomes (vertical tax fairness). The measure of equality or inequality in taxation is the requirement of consistency . This principle says that the legislature has to avoid contradictions in judgment by building on its own basic decisions without contradiction. One of the basic decisions is the objective net principle .
The judgment states that one of the basic decisions of income tax law is to limit income taxation through the objective net principle . The abolition of the business expense deduction for travel expenses to and from the workplace ( factory gate principle ) represents a deviation from the principle of inducement, which is decisive according to the objective net principle. It is therefore a disadvantage for certain taxpayers, which is contrary to the system. This unequal treatment violates the general principle of equality from (1) of the Basic Law . because it is not objectively justified. The Federal Constitutional Court has considered the following justifications:
- The purpose of increasing state revenues stated by the federal government was declared generally unsuitable to justify unequal treatment under tax law.
- Control purposes: As possible control purposes, the Federal Constitutional Court named the economically efficient and traffic, settlement and environmental behavior control as examples. However, the legislature had never adopted such goals in the legislative process, so that the Federal Constitutional Court ruled out such justification for this reason alone.
- Typification: The Federal Constitutional Court declares that in the interest of practicable law enforcement, the legislature has considerable scope for typing when designing the flat-rate distance allowance. This typification scope relates to both the amount of the cost estimate and the amount of private co-initiation. For this purpose, however, the legislature should have developed empirically justified standard cases that are based on the cases that typically occur in reality. He was not entitled to choose an atypical case, living at the factory gate, as a model.
- Constitutionally compliant system change: The legislature is basically entitled to introduce new basic decisions. The legislature is then not bound by previous basic legal decisions. The change introduced in 2007, however, lacked a minimum of new system orientation, as it did not make a fundamental change in the system and not even a new allocation decision that was not subordinate to the objective net principle. No new set of rules was created, just a singular, non-systematic exception to the objective net principle . The legislature could therefore not invoke a system change.
Since the reduction was already unconstitutional because of a violation of(1) of the Basic Law, the violation of other fundamental rights was no longer examined. Nevertheless, the Federal Constitutional Court named, as an indication of a new constitutional regulation, further fundamental rights to be observed:
- The constitutional requirement of tax sparing of the subsistence level of the taxpayer and his dependent family ( subjective net principle ). The Federal Constitutional Court stated that there may have been problematic cases of hardship here. It referred to an estimate by the Federal Ministry of Finance, according to which the reduction in the flat-rate travel allowance led to 90,000 taxpayers with an (pre-tax) income equivalent to the subsistence minimum under social welfare law being deducted income tax.
- The constitutional requirement of the special protection of marriage and family , Abs. 1 GG.
The Federal Constitutional Court ordered the legislature to remedy the unconstitutional situation with retroactive effect from January 1, 2007. For the period up to a new (constitutional) legal regulation, the flat-rate distance charge (analogous to the old version from 2004) continued to apply at 0.30 € for each distance kilometer. The controversial change was reversed by the legislature in early 2009.
The graduate economist and then finance minister Peer Steinbrück stated shortly after the verdict was announced that he considered the verdict to be wrong and that the negative consequences for Germany's ability to reform were not yet foreseeable. This statement was criticized by the judge at the Federal Fiscal Court Greite, because the Federal Constitutional Court did not question the state's ability to reform, but merely called for a fair distribution of the tax burden. Contrary to the parlance of the Federal Ministry of Finance, the deletion of the flat-rate distance tax was not an attempt to make savings, but rather an attempt to raise taxes.
The Federal Constitutional Court has declared the refusal of tax deduction for the first 20 kilometers of the route from home to work to be unconstitutional. In the ruling, the constitutional requirements for a change in the deduction of income-related expenses for trips between home and work were shown for the first time ; it is therefore of great importance for future changes in the law.
The analysis of the extent to which and under what conditions, according to the decision of the Federal Constitutional Court, the tax authorities can delete the flat-rate distance allowance varies in the literature.
According to Heinrich Weber-Grellet, the judgment relates exclusively to the prohibition of discrimination. The court only objected to the disadvantage of short commuters compared to long-distance commuters. He assumes that it is possible to delete the flat-rate distance fee without considering the objective net principle. This is countered, however, by the fact that the judgment (contrary to Weber-Grellet's reading) is essentially based on the objective net principle, i.e. also a more consistent deletion of the distance flat rate as a deviation from the objective net principle, the area of protection of the general principle of equality ((1) of the Basic Law ) violated and therefore the constitutional justification must be examined.
According to Stefan Breinersdorfer and Moris Lehner, the substantive regulatory content of the distance lump sum is not itself under constitutional protection (the objective net principle has no direct constitutional status). In the legislative process, however, the legislature is subject to an increased obligation to justify reasons; it must observe the fundamental rights barriers, the interaction of which results in the three constitutional control levels. Likewise, Stefan Schneider, who points out that the long-term existence of the distance lump sum does not prejudice the qualification as an employment expense. The singular deviation from the inducement principle through the deletion of the 2007 distance flat rate, however, represented an unconstitutional singular deviation from the burden decision made by the inducement principle.
In Walter Greite's view, the flat-rate travel allowance cannot be canceled, but it can be limited to a reasonable amount if there is a private co-initiative. Joachim Englisch also sees the objective net principle as not at the disposal of the legislature, since there is no other appropriate principle for concretising the constitutional performance principle.
Positions against the distance flat rate
The Federal Environment Agency and various environmental associations criticize the fact that the flat-rate travel allowance promotes the trend towards long commutes and thus the growth in traffic. It counteracted the energy transition and polluted our health through air pollutants and noise. In addition, the increased volume of traffic leads to an increased burden on the infrastructure and increases the costs of expanding and maintaining it. The Federal Environment Agency calls for a reduction in the flat-rate distance tax , whereby there should be a hardship rule - for example in the form of exceptional charges - or the complete abolition of the flat-rate distance flat rate with a simultaneous reduction in income tax rates.
Urban sprawl, suburbanization
The Federal Environment Agency also criticizes that the flat-rate distance allowance promotes urban sprawl . The BUND and NABU also criticize the fact that the distance flat rate leads to an increase in settlement and traffic areas and thus to the fragmentation of habitats. In this context, the flat-rate travel allowance is sometimes referred to as the "urban sprawl premium".
In addition, it is argued that the state promotion of commuting leads to problems of suburbanization , in particular to an exacerbation of the traffic problems in metropolitan areas, to the desertification of inner cities and to suburban ghettoization .
In the long term, the Kronberger Kreis is in favor of abolishing the flat-rate commuting allowance and justifies this, among other things, with its negative impact on the leisure and productive working hours of commuters, as the flat-rate distance allowance means that they are willing to spend more time commuting.
Studies by the sociologist Norbert F. Schneider showed that commuters suffer more frequently from psychosomatic illnesses such as headaches and back pain, do less sport or go to preventive medical check-ups and are generally under time pressure . The more the person sees the decision to commute as being determined by others and not as his or her own decision, the greater the impact.
Disadvantage to living close to the workplace
In addition, the flat-rate distance allowance disadvantages employees who consciously live close to their employer and would accept higher rents for this, but cannot deduct their rents separately from tax, because living costs (such as food, clothing, housing, etc.) are higher than the current basic tax allowance (2019) € 9,168 or € 18,336 for joint assessments are deemed to be settled. Critics point out that people do not move further away to earn money on the flat rate, but are dependent on mobility due to high rents in the cities and the relationship to home, family and living space.
According to SGB III, a reasonable way to work is for reasonable occupations: up to two hours if you work six hours (or less), up to two and a half hours if you work more than six hours or if in the affected region longer travel times are common, these are considered reasonable commuting times.(4)
Subsidies cut - residence is a private matter
Some scholars, politicians and the media see the travel lump sum as a tax subsidy that needs to be abolished because the choice of where you live is a private matter. Professionally motivated facts only begin at the factory gate, according to this opinion. The Federal Ministry of Finance defended the - now repealed - regulation with this factory gate principle . Against the background of the demand for a reduction in subsidies , a reduction or abolition of not only the lump sum is required, but the tax deductibility of the expenses for trips between home and work is rejected as a whole.
Positions for the distance flat rate
Principle of taxation based on capacity
Tax experts as well as the Federal Fiscal Court and the Federal Constitutional Court see the tax deduction for travel expenses to work as a necessary part of the principle of taxation based on performance . As part of the equal treatment of all taxpayers, they see the (deductible) transport costs of the products of a company to its customers as essentially identical to the transport costs of the goods work to its customer, the employer. Also, it is not a question of a subsidy, but of advertising costs, since an employee often cannot avoid travel costs to the workplace without terminating the employment relationship. An abolition or a drastic reduction would thus violate the principle of taxation based on the ability to pay (net principle) and also against the constitutionally guaranteed protection of marriage and family.
Protection of marriage and family
The flat-rate travel allowance strengthens the constitutionally guaranteed protection of marriage and family , since two spouses who work in different locations can only avoid the costs of traveling to work by foregoing a shared apartment.
State institutions expect spatial flexibility
State institutions create conditions that tend to increase rather than decrease commuter traffic. The employment agencies demand flexibility in the choice of the place of work. People who are new or returning to work cover an above-average commuting distance on average. When planning business parks , infrastructure and family needs are often neglected. A lack of childcare facilities is a major obstacle to mobility for families. Accordingly, it can be stated that long-distance commuters are more likely to have children than average.
High demands on flexibility and mobility
Working life is characterized by an increasingly frequent job change. German workers who belong to the birth cohort of those born around 1950 had an average of 4.6 jobs over the course of their working lives. According to an Emnid study, young professionals have to be prepared to change jobs an average of six to eight times. For the future, it is to be expected that traditional employment relationships will increasingly be replaced by discontinuous employment situations with high demands on flexibility and mobility.
Avoidance of economic welfare losses
In the opinion of the economist Hans-Werner Sinn , the distance lump sum is necessary in order to avoid economic welfare losses. Income tax is neutral and free of distortion if its levying does not change people's economic choices. If there were no income tax, a citizen of several job offers would accept the one that yields the highest profit after deducting travel expenses. If the tax system did not allow the deduction of commuting costs to work, the citizen would opt for the lower-paying offer in a nearby job, as the higher gross wage of a more distant job is absorbed by the tax. The possible additional profit would therefore be realized neither for the state nor for the citizen. Such a tax system would therefore be inefficient.
Distance flat rate is not a subsidy
Some academics and tax lawyers do not see a reduction in subsidies in a reduction in the flat-rate travel allowance, as this does not lead to a reduction in state expenditure, but to an increase in tax revenue.
According to an international study by the Federal Ministry of Finance, travel expenses to work are generally not tax-deductible in four of the eighteen EU states examined there, namely in the Czech Republic, Greece, Great Britain and Ireland. A tax deduction for travel expenses to work through lump sums exists in Austria, Poland, France, Belgium, Luxembourg, Portugal and Switzerland. In the Netherlands, Finland, Norway and Sweden, the tax deduction is limited to travel costs for public transport, travel costs for private cars are only tax-deductible if local public transport is unreasonable or if the distance between home and work is 10 km or more. In France there are two different methods of deducting the cost of commuting to work. It is possible to apply a flat-rate deduction of ten percent for advertising expenses. A maximum of € 13,501 applies here. The second option is to use the actual costs, but there is a limit to the kilometers. So only the first 40 kilometers can be deposited. More information about Austria under commuter flat rate .
- Constitutional issues relating to the planned abolition of the commuter flat rate in income tax law Legal opinion for the Hans Böckler Foundation by Joachim Wieland , 2006 (PDF; 176 kB).
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- paragraph no. 66.
- paragraph no. 69.
- paragraph no. 75.
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- Article of the Federal of Finance ( Memento of the original dated December 21, 2008 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF).
- Archive link ( Memento of the original from January 9, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.