District levy

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District levies are payments that local authorities belonging to the district make to the superordinate regional authority of the district on the basis of its right to levy in order to cover its financial needs in whole or in part.

General

The financing of districts is somewhat different from that of urban districts , since the real taxes ( property tax A and B, trade tax ) are due to the municipalities. To cover the financial needs, districts can levy a district levy from the communities belonging to the district. Their basis is the tax power of the municipalities and their key assignments . From this allocation basis, a certain percentage of a hundred is defined as the district allocation rate. Originally than take subsidiary intended means of coverage, the county levy has become an integral part of the income of counties . In 1997 their share of the income in West German districts was 46%, in East German districts 22%.

The district levy is a source of income for the districts based on the constitutional guarantee of the districts' right to self-government as well as on Article 106, Paragraph 6, Clause 6 of the Basic Law and derived from the community's financial assets, the collection of which is incumbent on the district council's sole responsible decision . State regulations in the territorial states authorize the districts to cover their financial needs by levying a district levy if the district income from fees and taxes is insufficient. The wording of the state regulations still reflects the original concept of the district levy as a subsidiary residual funding, although in fact the original peak coverage character of the district levy has long since disappeared and the district levy has become the most important source of income for the districts. The municipalities belonging to the district are compulsory members of the respective district and cannot escape the provisions of the district statutes.

Legal nature

From a financial and legal point of view, the district levy is an instrument of intermunicipal financial equalization in the form of a public-law monetary payment from the district's municipalities to the district. Furthermore, the district levy is a public charge within the meaning of Section 80 Paragraph 2 No. 1 and Paragraph 4 Clause 3 of the Administrative Court Regulations (VwGO). According to the prevailing opinion of the administrative courts, a broad interpretation of the term charges within the meaning of Section 80 VwGO is assumed. According to this, this term includes not only the duties in the sense of the tax code (taxes, fees, contributions), but all publicly asserted monetary claims that are intended to cover the financial needs of the public authority for the fulfillment of its public tasks and those of all which meet the normatively determined fact. It is sufficient if the charges use this function in addition to other functions, e.g. B. has a steering, drive, compulsory or penalty function and is to be used for a specific purpose. In the opinion of the OVG Münster, a municipality may only be used to finance an institution of the district by way of the additional burden to the extent that it benefits from this institution. The Munich Administrative Court has commented on the limits of the determination of the district levy. The assessment notice, with which the municipality is involved in the district system, is an independent administrative act (Section 35 VwVerfG), which opens the way to legal action for the municipality concerned. The determination of the district levy is an indispensable part of the budget statute of the district. This can also be challenged by the municipalities belonging to the district with the abstract norm review complaint (Section 47 (1) No. 2 VwGO), provided that this is stipulated by state law (cf.

Functions

When the district levy is levied, as with municipal financial equalization, two functions are fulfilled, namely the fiscal and the redistributive function .

The fiscal function lies in the fact that the district levy is the most important autonomous means of financing the districts, which gives them a certain amount of financial planning leeway. At the same time, it includes a flexible element of income distribution between the district and the municipalities belonging to the district. The determination of the district levy is not limited to the fiscal function. Rather, it also expresses a “redistributive function” (compensation function) in the relationship between the communities that are subject to contributions. Here, transfer funds are made from “below” (municipalities) to “above” (districts), i.e. in the opposite form in relation to the federal financial equalization scheme. From this point of view, the aim of the district levy survey is to moderate the differences in financial strength between the individual communities belonging to the district. The compensatory effect of the district levy should already take place on the basis of the levy itself, without the need for a special will of the district aimed at compensation. This happens because, due to legal requirements, financially strong municipalities absolutely have to use a larger part of their financial strength on the district levy expenses than financially weaker municipalities (see abundance ).

Approval of the district levy

In most territorial states, the setting of the district levy rates either generally or if standardized maximum rates are exceeded, the supervisory authority approval. Approval should be granted or refused in accordance with the principles of orderly and economical budget management; it can be granted subject to conditions or requirements. Basically, it can be assumed that “the approval of the district levy may only be refused for legal reasons”. However, the supervisory authority is not allowed to make any discretionary considerations regarding the appropriateness of the levy rate.

District allocation in the criticism

The constitutionality of the district levy is undisputed. The border is the core area of ​​municipal financial sovereignty . However, this is not already affected if the municipality's performance of voluntary tasks is restricted by the financial burden of the district levy. However, the financial capacity must not be affected, the communities must not lose the opportunity to be vigorous. It is not easy to determine where the limits of financial resilience are. A violation of the municipal financial sovereignty guaranteed by Article 28.2 of the Basic Law exists if the municipalities are deprived of their resources through taxes and levies in such a way that their financial responsibility is impaired and their financial resources are called into question. It is therefore often stated that the district levy can affect the principle of subsidiarity , i.e. personal responsibility (of the municipality).

In the past, the district levy has given rise to a large number of disputes both in legal theory and in procedural terms. Not only the question of which items of expenditure may be taken into account in the district levy was and is the subject of intensive discussions. It is also about the ever narrowing liquidity leeway of the municipalities belonging to the district. Against this background, the question of the distribution of tasks between the district and the municipalities belonging to the district is of central importance. Fundamental to this problem is the "Rastede resolution" of the BVerfG of November 23, 1988. In this, the BVerfG started from the consideration that Article 28.2 of the Basic Law, outside the core area of ​​the guarantee of self-administration, a constitutional principle of distribution of tasks with regard to local issues Community for the benefit of the communities. In this way, Article 28, Paragraph 2, Sentence 1 of the Basic Law guarantees the municipalities an area of ​​responsibility which in principle encompasses all matters of the local community. Against the background of these constitutional requirements, there was a lively development of case law on the question of the limits of district jurisdiction.

In this regard, the BayVGH ruled on November 4, 1992 that municipalities belonging to the district can contest the district levy assessment on the grounds that the district budget provides for considerable expenditure to fulfill tasks outside the district. The requirement of “self-administration-friendly behavior” requires the district to promote and not restrict the community's ability to dispose of budget funds independently when providing funds. In the meantime, however, contribution rates of over 50% have withstood the judicial review.

statistics

The differences in the local contribution rate are not only due to different burdens in the social area or the frugality of administrations. They are also a consequence of the different financial equalization systems in the countries, on the structure of which the amount of the district levy is largely dependent. They also depend on the different borrowing policies of the districts.

Average district contribution rates of the federal states (excluding city states) in percent

state 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
Baden-Württemberg 30.2 29.1 28.8 30.6 33.6 36.6 36.4 35.7 33.6 32.1 31.4 34.3 33.7
Bavaria 44.8 45.9 45.0 45.9 47.4 49.1 48.5 47.6 46.4 45.9 46.5 48.6 49.6
Brandenburg 40.2 40.6 40.5 41.9 43.2 44.3 44.3 44.2 44.3 44.2 44.2 45.1 45.0
Hesse 50.8 50.3 50.6 50.9 51.4 53.1 54.2 54.4 54.4 54.7 55.7 56.3 56.3
Mecklenburg-Western Pomerania 24.6 26.0 26.0 27.5 28.9 31.3 34.4 40.0 41.0 40.9 41.0 43.1 45.8
Lower Saxony 49.7 50.3 49.7 50.1 50.8 51.5 51.6 51.2 51.3 51.2 51.6 51.6 51.2
North Rhine-Westphalia 42.2 38.6 39.1 43.1 42.6 47.5 48.6 48.4 45.5 45.9 48.3 51.4 49.1
Rhineland-Palatinate 34.6 34.7 35.2 35.9 36.2 37.2 37.8 38.0 38.8 39.1 40.4 41.4 42.1
Saarland 51.8 49.9 49.8 51.3 53.2 57.3 55.4 54.7 51.5 51.4 60.5 68.6 60.0
Saxony 24.0 24.0 24.1 24.4 25.3 25.3 26.1 27.1 26.6 27.1 28.5 29.7 30.5
Saxony-Anhalt 35.4 35.0 35.9 37.9 39.3 41.6 43.4 44.3 45.5 46.3 43.0 41.1 44.9
Schleswig-Holstein 31.3 31.7 31.4 31.1 32.3 34.5 35.3 35.6 35.8 37.5 37.9 37.9 37.1
Thuringia 31.2 30.4 31.7 32.3 32.2 34.6 35.5 35.7 36.1 36.1 36.6 37.3 39.1

Web links

See also

Individual evidence

  1. ↑ VGH Kassel, decision of January 14, 1991, DÖV 1991, 1029
  2. ↑ Judgment of June 16, 1989, EzKommR 1700.85
  3. ^ Judgment of December 13, 1989, EzKommR 1700.92
  4. ^ OVG Münster, judgment of June 16, 1989, EzKommR 1700.85
  5. ^ OVG Münster, judgment of December 15, 1989, DÖV 1990, 616
  6. ↑ BVerwG, NVwZ 1985, 271
  7. ↑ BVerfGE 79, 127
  8. ↑ Ref .: 4 B 90.718, DVBl. 1993 p. 893