Ordinary residence (tax law)
A person has their habitual residence in the tax law sense of Tax Code where they may be staying that indicate that they are not only staying temporarily at this location or in this area, i.e. where they live.
A specific length of stay is not important, but the length of stay is an important indicator. For this reason, the habitual residence is always to be assumed where a person spends at least six consecutive months , regardless of the calendar year (short interruptions are not harmful), unless they are visiting, for a cure or similar private purposes.
It is to be linked to external characteristics; all that matters is a natural will, legal capacity is not required. Forced stays also establish habitual residence under tax law, for example in a penal system or an accident hospital. Physical presence is required. The habitual residence is terminated when the person concerned no longer stays at the place in question and no longer has the will to return.
In contrast to civil law , tax law does not allow several normal stays at the same time.
If a person has their habitual residence in Germany, they are subject to unlimited income tax in Germany under German tax law . The place of habitual residence is also the point of reference for which tax office is locally responsible.
Income from employment abroad
If an employee is posted abroad by an employer but retains his or her habitual residence in Germany, he remains liable for domestic income tax. In order to avoid double taxation, however, if the country of activity also wants to tax , so-called double taxation agreements regulate that income is only taxed in the country of activity and is exempt from taxation in Germany.
The 183-day rule in the double taxation agreement provides for an exception to this.
If the employee spends less than 183 days in the foreign country in which he is employed in the tax year (usually the calendar year) or in any 12-month period (depending on the respective double taxation agreement), he must also his Tax foreign wages in Germany if the employer is not based or has a place of business in the foreign country of activity. There is then no taxation in the country of employment.
- BFH BStBl. 1994, 11 BFH BStBl. 1990, 701; FG Baden-Württemberg. EFG 1991, 102; Zabel DStR 1989, 477; Tipke / Kruse AO § 9 margin no.1
- BFH BStBl 1994, 887/889
- RFHE 49, 186/188
- RFHE 49, 186 and BFH NV 1987, 262
- BFH BStBl. 1971, 758
- BFHE 161, 482/484
- FG Hamburg EFG 59, 241; FG Bremen EFG 90, 93; Tipke / Kruse AO § 9 margin no.16
- KG FamRZ 1983, 603; KG OLGZ 1987, 311/315 = FamRZ 1987, 603/605 = NJW 1988, 649/650; LG Tübingen BWNotZ 1993, 145; BayObLG FamRZ 1980, 883
- BFH BStBl. 66, 522; ders. BStBl. 84, 11