Church money in marriage of different faiths

from Wikipedia, the free encyclopedia

The church money in marriage of different faiths is a form of church tax in Germany. In accordance with the church tax regulations of the federal states, it is levied as special church money from those church members who seek to obtain the spouse splitting in accordance with §§ 26, 26 b Income Tax Act for income tax with her assess your spouse can and themselves have no or a lower income than the spouse, who as alone- or better-paid spouse no tax authorized or tax levied Church, religious community or ideological community belongs to that entity of public law is.

Since the church money is designed to raise church tax indirectly from non-church members, it is viewed by its opponents as a punitive tax and referred to as a "pagan tax".

Reasons for the introduction

Until the fundamental decision of the Federal Constitutional Court in 1965, the church tax laws also provided for the collection of church taxes in a variety of forms at the expense of persons not belonging to them, especially spouses of different faith. These regulations were all declared unconstitutional by the BVerfG. It expressly stated that a non-church spouse should not be charged with church tax on behalf of his partner.

Outside of the actual reasons for the decision, however, the court enabled the churches in an obiter dictum to tax the church member in the case of spouses of different faiths, provided that the church member - with high income of his non-church spouse - otherwise "would remain free of church tax due to lack of own income within the meaning of the Income Tax Act". The subject of taxation could be the lifestyle of the spouse belonging to the church according to their actual life style. In contrast, if the church member has its own income, the church "must" - if it taxes the income - tax exactly this income of its member, which excludes the taxation of the so-called "lifestyle expenses".

Then the preparations for the introduction of a special church money were started, from which the general church money is to be distinguished. This general church money has the function of a minimum church tax and is levied in some countries according to the church's own, usually very low rates. The “special church money”, which was then largely introduced in the 1990s, was also justified by the churches' particular financial distress. The churches also asserted a gap in justice that would arise from the fact that, in the case of married couples of different faith, the whole family would take advantage of church services on religious occasions such as baptism or confirmation, but without contributing to the costs like other believers.

Legal background

After the BVerfG had forbidden the collection of church tax to be linked to characteristics inherent in the person of the non-church spouse, direct consideration of his income was no longer possible. The BVerfG therefore allowed in 1965 that in the event that the spouse belonging to the church "would remain exempt from church tax due to lack of income of his own", his living expenses would be taxed by the church. If the spouse belonging to the church has his own income, the church "must" tax exactly this.

This lifestyle expenditure of the spouse belonging to the church is difficult to grasp and may therefore be assessed “typifying” or “alternative” on the jointly taxable income of the spouses. The practical basis for this is the nationwide church money table, which the BVerwG approved in 1977 - but only for the case of the spouse belonging to the church without income. The background for this is u. a. that the income of the spouse belonging to the Church may not be added to the income of the spouse who is not a member of the Church. The European Court of Human Rights (ECHR) has confirmed that the special church money is legally based on the condition "no income"

The church tax laws of the federal states adopted corresponding regulations, especially around the year 2000. These provisions authorize the churches to levy the special church money, deviating from the original requirements of the BVerfG, regardless of the income constellation, i.e. even if the spouse belonging to the church has their own income. This means that two optional provisions stand side by side with equal rights in the church tax laws: Church income tax can be levied in the case of marriage of different faiths, but also the special church money. The church tax laws almost always do not regulate when which of the two taxes is to be levied, they are insofar indefinite. This uncertainty is clarified in the so-called comparison calculation: The church taxpayer is used to determine the tax that has the higher amount in the respective case.

The church income tax on the church member's own income is compared with the special church money according to the church money table, i.e. a special church money on this own income plus the income of the non-church spouse. This comparison calculation has not yet been confirmed by any court.

In 2013, the Federal Fiscal Court stated as a "clear legal position" according to the BVerfG that the special church money may only be levied if the church-affiliated spouse "would remain free of church tax due to lack of income", as the Federal Constitutional Court had prescribed in 1965. This includes the alternative assessment of the so-called lifestyle expenses on the jointly taxable income. The so-called comparison calculation does not change this. Insofar as the BFH had decided otherwise in previous decisions, legal errors are criticized.

The Federal Fiscal Court has now changed its legal opinion in two non-acceptance decisions in 2019 and has come much closer to the case law of the BVerfG. Lt. According to these resolutions of the BFH, the special church money as taxation of the living expenses is then according to the constitution, if no income tax and therefore no church income tax is payable on the church member with no or low income. This means that, in the opinion of the BFH, the special church money is not in accordance with the constitution if KiESt is to be determined. The so-called comparison calculation is then obsolete. More here. It remains to be seen how churches, authorities and courts react to this change.

The Finance Court of Saxony declared in 2019 that the Saxon regulation on special church money in marriage of different faiths is incompatible with the Basic Law, because spouses in 2014 and 2015 are in a worse position than registered civil partnerships for no objective reason. In the years concerned, spouses might have to pay special church fees, but registered partners did not. In these years, the regulation violated the general principle of equal treatment. However, since the Finance Court itself cannot determine the unconstitutionality of a law, it suspended the proceedings and referred the case to the Federal Constitutional Court.

criticism

The possibility of collecting the special church money provided by law is under constant criticism and repeatedly concerns the courts, including the constitutional courts. It is criticized that the result is a circumvention of the state church law prohibition of burdening the non-church spouse with the church tax of the other, since only the latter can carry such a tax economically. As a result, the church tax is still made dependent on the income of the non-church spouse. In addition, the survey leads to tax unequal treatment, since it does not affect all married couples equally, but is dependent on distinctions that are not relevant to state church law or church tax law, such as the question of the choice of income tax assessment. Finally, it should be pointed out that the introduction of the special church money as a taxation based on the cost of living from the point of view of equality compels, at least in marriages of different faiths, to always carry out the church tax as an expense tax and thus the spouse who belongs to the church alone or who earns more only with his share of the general Living expenses should be taxed, an objection that is supported even by supporters of the scheme.

Furthermore, it is criticized that the special church fee is also levied on the own income of the spouse belonging to the church - i.e. double earners - although the BVerfG 1) did not allow this and 2) prohibited it. The “alternative” assessment of the lifestyle expenses based on the “jointly taxable income” violates the prohibition of the splitting procedure and the aggregation of the income of the spouses in this case.

Elevation

Despite legal nationwide introduction, the special church money is actually levied inconsistently by the Christian churches (the Protestant regional churches, the Catholic dioceses and the Old Catholic Church): Baden-Württemberg (only ev.), Berlin, Brandenburg, Bremen, Hamburg, Hesse (also free religious Mainz and Offenbach), Mecklenburg-Western Pomerania, Lower Saxony, North Rhine-Westphalia (only ev.), Rhineland-Palatinate (ev. And diocese of Limburg, Mainz, Speyer, free religious community of Mainz), Saarland (ev. And diocese of Speyer), Saxony , Saxony-Anhalt, Schleswig-Holstein, Thuringia. It is also raised by the Jewish communities in Frankfurt, Bad Nauheim, Darmstadt, Fulda, Gießen, Kassel and Offenbach.

In Saarland, the special church fee may not be levied if the spouse belongs to an ideological community, is a corporation under public law and is therefore entitled to tax. Up to and including 2014, this also applied to the federal states of Berlin, Brandenburg, Hamburg, Hesse and Schleswig-Holstein, but was changed there in 2015 in the church tax laws in the omnibus procedure together with changes to the capital gains tax and the registered civil partnership . In 2015, Hessen extended the collection of the special church fee to spouses who are members of an ideological community, which is a public corporation and is therefore entitled to tax, but not tax-collecting. In Lower Saxony, the special church fee is not charged if the spouse belongs to an ideological community, is a public corporation and collects taxes.

On November 25, 2018, the autumn synod of the Evangelical Luth. Bavarian regional church decided to no longer levy the special church money, starting with the tax year 2018. As a justification, when the corresponding bill was introduced, the first point was that the special church money "breaks the principle of individual taxation".

The Diocese of Trier will no longer levy the special church fee from the 2018 tax year.

implementation

The starting point is the so-called "lifestyle effort" of the church-affiliated spouse. The jointly taxable income of the spouses is used as a benchmark. Child allowances are taken into account. The church fee is calculated according to a special tariff, which makes up around a third of the actual church tax rate, and amounts to between € 96 and € 3,600 per year. If the jointly taxable income is less than 30,000 euros, the church fee does not apply.

This practice was approved by the Federal Constitutional Court . It states: "If, in view of the difficulties in determining the lifestyle expenditure as an indicator of the economic performance of the spouse belonging to the church, this expenditure is measured according to the joint income of the spouses, there is no constitutional objection to this". The practice of the churches to base the assessment of church taxes for spouses of different faiths (and joint tax assessment) on the common taxable income has been declared permissible by the highest court for sole earners.

The tax offices carry out a so-called comparative calculation in the income tax assessment, according to which the higher amount of church income tax and special church money is determined. The legal basis is on the one hand the church tax law of the respective federal state and on the other hand the church tax resolutions of the respective church. This comparison calculation contradicts the stipulation “exempt from church tax due to lack of own income” of the BVerfG for special church fees, as the BFH confirmed in 2014.

The special church money is collected by the tax office or church tax office in the course of the income tax return. In the case of wage taxpayers, the special church money is set as part of an annual wage tax adjustment, otherwise directly by the church tax office. The special church fee is tax deductible as a special expense.

outlook

Various proceedings with which the constitutionality of the “church money” was challenged, including proceedings 2 BvR 591/06 and 2 BvR 291/06, were not accepted for decision by the Federal Constitutional Court on October 28, 2010.

In its reasoning, the BVerfG pointed out that its earlier case law on church taxation, in particular the decisions of December 14, 1965, is still valid. The BFH referred to this in the decision of October 8, 2013 - IB 109/12, when it established as a “clear legal situation” that the special church money “only for this case constellation” “is free of church tax due to lack of own income” on the life expenses of the church member Spouses oriented.

It remains to be seen whether and how this ruling will affect the practice of collecting church money to collect the special church money from double earners.

It is often alleged that the European Court of Human Rights ruled in its April 2017 judgment that the collection of special church money does not violate the European Convention on Human Rights (ECHR) (Az. 10138/11, 16687/11, 25359/11 and 28919 / 11). This is not the case. Such allegations can only rely on the headline of the ECHR press release. In fact, the ECHR only decided in this judgment whether the offsetting of the wage tax reimbursement of the non-church husband with the church tax liability of his wife violated the ECHR (ibid., Paras. 69, 76, 83). The other four actions were not admitted (paragraphs 118, 121, 134). According to this judgment of the ECHR, the special church money may only be levied on church members without income (“no income”; marginal numbers 12, 55, 57).

literature

  • Volker Korndörfer, Jacqueline Neumann: The special church money or the revival of household taxation. In: Neumann, Czermak, Merkel, Putzke (eds.): Current developments in Weltanschauungsrecht. Nomos-Verlag Baden-Baden 2019, pp. 291 - 311. ISBN 978-3-8487-5907-1 (print), ISBN 978-3-7489-0034-4 (ePDF)
  • Carsten Frerk : Finances and assets of the churches in Germany . Alibri Verlag , Aschaffenburg 2002, ISBN 3-932710-39-8 .
  • Felix Hammer: Legal issues of church tax. Mohr Siebeck, Tübingen 2002, ISBN 3-16-147537-2 .
  • Wolfgang Rüfner: Federal and state competencies in the area of ​​church tax. In: Festschrift for Christoph Link on his 70th birthday: Civil freedom and Christian responsibility. Mohr Siebeck, Tübingen 2001, ISBN 3-16-148099-6 , p. 431 ff.
  • Stephan A. Schoppe: The church tax versus the separation of state and church. An analysis of constitutional and tax law aspects with special consideration of the special church money. Publishing house Dr. Kovač , Hamburg 2008, ISBN 978-3-8300-3646-3 .

Web links

Individual evidence

  1. ↑ Bavarian Church Tax Act Art. 4 Paragraph 3: http://www.gesetze-bayern.de/jportal/portal/page/bsbayprod.psml?showdoccase=1&doc.id=jlr-KiStGBY1994rahmen&doc.part=X  ;
  2. ↑ Church taxes in the state of Schleswig-Holstein Art. 3 Paragraph 6: http://www.gesetze-rechtsprechung.sh.juris.de/jportal/?quelle=jlink&query=KiStG+SH&psml=bsshoprod.psml&max=true&aiz=true  ;
  3. ↑ Evangelical Lutheran Church in Bavaria: http://www.kircheundgeld.de/index.php?id=109&zufall=7&rubrik=4&unterpunkt=20&aktiv=0
  4. ↑ BVerfG, 2 BvR 816/10 of October 28, 2010, paragraph no. 1 http://www.bverfg.de/entscheidungen/rk20101028_2bvr081610.html
  5. ↑ NDR market from minute 3:20 https://www.ndr.de/fernsehen/sendung/markt/rueckschau/kirchgeld101.html
  6. ↑ a b in Bavaria and Saarland church members be required to make special church money, their spouses no tax legitimate belongs ideological community, in the other provinces also those whose spouse while a tax authorized but no tax levied belongs ideological community (as of 2018). Bavaria: Article 4 Paragraph 3 KirchStG ; Saarland: §4 Abs. 1 Nr. 5 KiStG  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , for the others exemplarily Berlin: §3 Abs. 1 Satz 1 Nr. 5 KiStG@1@ 2Template: Toter Link / sl.juris.de  
  7. ↑ Wolfgang Tamm (December 28, 2010): Non-denominational people pay church tax out of ignorance . In: Telepolis - An offer from heise online. Archived from the original on March 3, 2019. Retrieved March 3, 2019.
  8. ↑ BVerfGE 19, 268 (judgment 1 BvR 606/60 of December 14, 1965)
  9. ↑ BVerfGE 19,268
  10. ↑ BVerfG, judgment of December 14, 1965 - 1 BvR 606/60 , item C II 2
  11. ↑ BVerfG, judgment of December 14, 1965 - 1 BvR 606/60 , item CI 2
  12. ↑ This is a so-called basic reason for this judgment, which according to § 31 (1) BVerfGG and the associated case law of the BVerfG is binding for all constitutional bodies, courts and authorities. For more details see e.g. https://kirchgeld-klage.info/zur-rechtslage/2-6-rechtslage-und-rechtsprechung-zum-besonderen-kirchgeld/#II%206.2
  13. ↑ von Camphausen, in: Mangoldt / Klein / Starck: Commentary on the Basic Law. Vol. 3, ISBN 978-3-8006-3215-2 , Art. 137 WRV Rd. 290
  14. ↑ Correspondence sheet July 2000 ( Memento of the original from September 21, 2012 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. . @1@ 2Template: Webachiv / IABot / www.pfarrverein-bayern.de
  15. ↑ BVerfG 1 BvR 606/60 point C II 2
  16. ↑ BVerfG 1 BvR 606/60 point CI 2
  17. ↑ This lifestyle effort is not conceptually defined anywhere. Hess. VGH, judgment of May 3, 1973, V OE 29/72; Section 1 d)
  18. ↑ BVerwG of February 18, 1977 - VII C 48.73, v. a. Point II 4 c
  19. ↑ BVerfG 1 BvR 606/60, No. CI 2a
  20. ↑ ECHR of 7.4.2017, 10138/11, CASE OF KLEIN AND OTHERS v. GERMANY, NJW 2018, 3295; Rn 12,55,57
  21. ↑ It is not true that the BVerfG approved these regulations. The decision of 23.10.1986 - 2 BvL 7/84, which is often used as evidence, only concerned the powers of the state legislature, and the BVerFG only said something about this, nothing about the regulations there for the special church money.
  22. ↑ Example Baden-Württemberg: Section 5 (1) no. 1 a i. V. m. Section 19 Paragraph 4 and Section 5 Paragraph 1 No. 5
  23. ↑ An exception is e.g. B. Schleswig-Holstein, where the comparison calculation is in Section 3 (4) of the Church Tax Act.
  24. ↑ The comparison calculation is in the individual federal states and in the various churches in very different regulations, mostly in the so-called church tax resolutions, which then have to be approved by the state.
  25. ↑ The Federal Fiscal Court used the comparative calculation in its decisions on special church money such as B. IR 44/05 hidden because all these decisions are based on the judgment of the BFH IR 76/04 on the special church allowance for single-earner marriages, as can be seen from the chains of evidence.
  26. ↑ BFH, decision of October 8, 2013 - IB 109/12 , paragraphs 2a and 2b; BVerfG, judgment of December 14, 1965 - 1 BvR 606/60 , item C II 2
  27. ↑ BFH, decision of February 26, 2014 - IS 24/13
  28. ↑ kirchgeld-klage.info/3-urteile .
  29. ^ Resolutions of February 13, 2019 - IB 27/18 and IB 28/18
  30. ↑ https://kirchgeld-klage.info/zur-rechtslage/2-6-rechtslage-und-rechtsprechung-zum-besonderen-kirchgeld/#II%206.9
  31. ↑ Procedure 2 BvL 6/19 on the BVerfG website , accessed on January 10, 2020
  32. ↑ Johannes Neumann: Religion, Money and Power. In: Zeitdiagnosen , Vol. 8: Religious Freiheit und Konformismus , LIT-Verlag, Münster 2004, ISBN 3-8258-7654-3 , pp. 93–223; Stephan A. Schoppe: The church tax versus the separation of church and state , Verlag Dr. Krovac, Hamburg 2008, ISBN 978-3-8300-3646-3
  33. ^ Damkowski: Church tax in marriages of different faiths. DÖV 1987, 705ff.
  34. ↑ A legal analysis can be found at Kirchgeld-Klage.info
  35. ↑ BVerfG, judgment of December 14th, 1965 - 1 BvR 606/60, item C II 2: If “exempt from church tax due to lack of own income”, then taxation based on lifestyle expenses
  36. ↑ BVerfG, judgment of December 14th, 1965 - 1 BvR 606/60, item CI 2a: If the spouse belonging to the church “must” be taxed on their own income, provided the church taxes the income.
  37. ↑ BVerfG, judgment of December 14, 1965 - 1 BvR 606/60, item CI 2 a: “In such a marriage, there is therefore no possibility of allocating income to the spouse belonging to the church that is not part of the church using the principles of splitting flow in. "
  38. ↑ BVerfG, judgment of December 14th, 1965 - 1 BvR 606/60, item CI 2 d: "The contravention of the system becomes particularly clear in the fact that [...] here the income of a taxable spouse is added together with that of a non-taxable spouse."
  39. ↑ Church Office of the EKD http://ekd.de./kirchenfinanzen/kirchensteuer/855.html
  40. ↑ Berlin: GVBl. P. 519  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , Brandenburg: GVBl.I / 14, No. 30 , Hamburg: HmbGVBl. P. 433 , Schleswig-Holstein: GVOBl. P. 127@1@ 2Template: Toter Link / www.wkdis.de  
  41. ↑ Lower Saxony Chamber of Tax Advisors Corporate body under public law: Special church money in "marriages of different faith". Retrieved October 2, 2019 .
  42. ^ Avoidance of special church fees - HVD Lower Saxony. Retrieved October 2, 2019 .
  43. ↑ Evangelical Church in Germany (29.11.2018): Bavarian State Church is the first to abolish “ special church money ” . Archived from the original on March 3, 2019. Retrieved March 3, 2019.
  44. ↑ Evangelical Lutheran Church in Bavaria (November 28, 2018): State Synod: Abolished special church money . Archived from the original on March 3, 2019. Retrieved March 3, 2019.
  45. ↑ Youtube User bayernevangelisch (27.11.2018): #elkbsynode 2018: Report ORK Reimers on supply / bills / report PuK (part 1) . From 1 hour, 0 minutes and 31 seconds.
  46. ↑ Youtube User bayernevangelisch (27.11.2018): #elkbsynode 2018: Report ORK Reimers on supply / bills / report PuK (part 1) . From 1 hour, 10 minutes and 30 seconds.
  47. ↑ Diocese of Trier (undated): There are some things that you would like to know more precisely: Church tax - the details (diocesan church tax) . Archived from the original on March 3, 2019. Retrieved March 3, 2019.
  48. ^ Decision of October 28, 2010, NJW 2011, 365 . On the basis of exactly this decision of the BVerfG with the BFH, decision of October 8, 2013 - IB 109/12 , paragraphs 2a and 2b, the BFH established as a “clear legal situation” that “these statements” of the BVerfG “only for this case constellation” “ exempt from church tax due to lack of own income ”.
  49. ↑ The BVerfG refers to the judgment of the BFH IR 76/04 for the assessment of the lifestyle expenses, which in turn is the only correct evidence of the judgment of the BVerwG VII C 48.73. This, in turn, has explicitly limited this assessment using the church money table to church members with no income (No. II 4 c, at the end of the section.)
  50. ↑ The KiStG of the federal states allow church members in marriage of different faiths to collect church income tax as well as special church money. The churches stipulate in their respective church tax resolutions without any further legal basis that the higher amount of both is levied. The relevant details can be found e.g. B. at http://www.steuer-forum-kirche.de/kistg-frame.htm
  51. ↑ BVerfG, judgment of December 14, 1965 - 1 BvR 606/60, item C II 2
  52. ↑ According to the “clear legal situation”, the special church money is strictly separated from the church income tax and is based “only for this case constellation” “free of church tax due to lack of own income” on the lifestyle expenses of the spouse belonging to the church. (BFH, decision of October 8, 2013 - IB 109/12, paragraphs 2 a and b). The comparison calculation does not change this strict separation. (BFH, decision of February 26, 2014 - IS 24/13)
  53. ↑ cf. only BVerfG, 2 BvR 816/10 of October 28, 2010, http://www.bverfg.de/entscheidungen/rk20101028_2bvr081610.html
  54. ↑ cf. BFH IB 109/12, Section II a) and b); http://juris.bundesfinanzhof.de/cgi-bin/rechtsprechung/document.py?Gericht=bfh&Art=en&nr=28979 /
  55. ↑ e.g. Haufe Online-Redaktion (April 10th, 2017): Special church money does not violate the European Convention on Human Rights . Archived from the original on March 3, 2019. Retrieved March 3, 2019.