Spousal assessment
The spouse assessment is a specialist tax term that describes the possibilities of different tax assessments for spouses .
In Germany, the spouse tax assessment is regulated in § 26 , § 26a , § 26b and § 28 Income Tax Act (EStG).
Spouses who both have unlimited income tax and do not live permanently separated, can (until 2012 separate assessment) as between individual predisposition § 26a Income Tax Act and joint assessment in accordance with § 26b select the Income Tax Act.
The choice of the type of assessment can be made in the income tax return or through a separate declaration from one of the spouses. If no declaration is made regarding the type of assessment, the joint assessment will be carried out.
Joint assessment
In the case of joint taxation, the income of the spouses is determined separately. The total amount of income is then determined together. The spouses are treated as a single taxpayer, but with double the tax amount, which results for half of the jointly taxable income ( spouse splitting ). Due to the progressive taxation, this is usually cheaper if the income of both partners is different.
The spouses are jointly and severally liable , with the possibility of division in the enforcement proceedings.
Separate assessment until 2012
In the case of separate assessments, the spouses are assessed individually for income tax. In certain constellations, this can be cheaper than the joint assessment (e.g. use of losses, etc.).
If one of the spouses wishes a separate assessment, this choice is binding for the tax office. However, the other spouse can claim damages if the separate assessment request violates the principle of good faith . This also applies if spouses separated and one spouse would receive a tax refund for the previous year. From the time of separation, however, a spouse is only obliged to give consent if, from the time of separation, they are treated as if they were assessed separately from that point in time. The beneficiary spouse may have to reimburse a partial amount (BGH judgment of 23 May 2007, XII ZR 250/04).
Individual assessment since 2013
As of January 1, 2013, the separate spouse assessment no longer applies. In accordance with Section 26a of the Income Tax Act, individual assessment can now be chosen. Despite the fact that both terms are often used synonymously in practice, the type of attribution of special expenses ( Section 10 (1) No. 5 EStG), extraordinary burdens ( Sections 33 to 33b EStG) and tax reductions according to Section 35a EStG changed. These are generally allocated to the spouse who financially borne the expense ( Section 26a, Paragraph 2). On request, however, half of the expenses can still be deducted as in the old version (Section 26a (2) sentence 2).
Special assessment for the year of marriage (until 2012)
If the spouses have the special assessment according to § 26c EStG a. F. requested, they were treated as if they were not married to each other. The special assessment could last be chosen for the assessment period 2012.
Applicability to same-sex civil partnerships
On June 6, 2013 the Federal Constitutional Court declared the unequal treatment of civil partnerships and marriages in income tax law, in particular the non-granting of spouse splitting for civil partnerships, to be unconstitutional. The court declared that there were no "serious material reasons for unequal treatment" and demanded that the relevant laws be amended retrospectively from August 1, 2001.
With effect from July 19, 2013, the judgment of the Federal Constitutional Court was implemented through an amending law. Registered civil partnerships are thus treated like marriages under income tax law. This applies to all cases in which the income tax has not yet been finalized ( Section 2 Paragraph 8 and Section 52 Paragraph 2a EStG old version).
See also
Individual evidence
- ↑ Changes to the types of assessment of married couples through the Tax Simplification Act 2011. (No longer available online.) Archived from the original on February 27, 2013 ; Retrieved May 25, 2013 .
- ↑ Section 52 (68) EStG old version
- ↑ 2 BvR 909/06 dejure
- ↑ Act amending the Income Tax Act in implementation of the decision of the Federal Constitutional Court of May 7, 2013 of July 15, 2013 ( Federal Law Gazette I p. 2397 )
