Special charge (Germany)

Public law burdens

A special charge is a non-tax charge and a generic term for a wide range of various public charges. It is therefore not possible to formulate a general definition.

backgrounds

In a series of decisions, the Federal Constitutional Court did not qualify the payment obligations imposed by law on a limited group of people with regard to specific economic or social contexts as tax levies or preferential charges , but as special levies and viewed as permissible under constitutional law. It denied that in these cases an express special constitutional authorization would be required to impose the special charges; Rather, it has derived the legislature's competence to introduce extra-tax charges as well as the regulation of their use from the general competences according to Art. 73 ff. GG .

The material content of a tax is decisive for qualifying as a special tax. Since it is a question of delimiting areas of competence, it cannot depend on how the Tax Act itself classifies a public-law tax. It is not in the power of the federal or state legislature to take a charge that falls under the concept of tax by expressly contrary provision, i.e. by expressly denying the tax status or by expressly classifying it in another tax category, to take this legal qualification and thereby to establish its jurisdiction.

The collection of a special charge presupposes a specific relationship (factual proximity) between the group of taxpayers and the purpose pursued with the collection of the tax.

The group burdened with the tax must be evidently closer to the purpose pursued by collecting the tax than any other group or the general public of taxpayers.
This factual proximity must result in a special group responsibility for the fulfillment of the task to be financed with the extra-tax levy.

A social group can only be claimed with a special tax if it can be distinguished from the general public and other groups by a common set of interests specified in the legal system or in social reality or by special common circumstances, i.e. if it is a in this sense homogeneous group acts.

Special charges may not be levied to generate income for the general financial needs of a public community and their revenue may not be used to finance general government tasks.