Second home tax

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The second home tax (also: second home tax , second home tax , unofficial terms: second home tax , secondary residence tax or secondary residence tax ) is a municipal expense tax in Germany . The tax revenue in 2013 was around EUR 110 million nationwide.

General information on tax

As a local expense tax, the second home tax is purely a municipal tax . It is raised by the community . Owning an apartment (second home) next to a main residence is taxed. Often the second home is equated with the secondary home according to the right to report .

Tax revenue from the second home tax in million euros (nationwide) for the years 1996 to 2007

The legal basis for competency is Article 105 (2a) of the Basic Law , according to which the states can levy “local consumption and expense taxes”. Almost all federal states have delegated this legislative competence to the municipalities (e.g. in Baden-Württemberg according to Section 9 (4) of the Municipal Tax Act), which may issue a second home tax statute ( state laws exist in the city ​​states of Berlin , Bremen and Hamburg ).

The tax offense is having another apartment next to the main residence . It does not matter whether the apartment is rented or is occupied by the owner himself. It is also irrelevant if the main residence is in the same place.

Tax details

Definition of the apartment

Some communities, such as B. Dresden , understand an apartment as a self-contained residential unit with room, kitchen / kitchenette and bathroom / toilet in the sense of the respective state building regulations, others (e.g. Dippoldiswalde) consider any living space as an apartment . The presence of windows as well as the energy and water supply can also be a decision criterion. In some cities, such as B. Erftstadt or Munich , all mobile homes, mobile homes, caravans and campers that are parked on their own or third-party property for a not only temporary period for the purpose of personal living requirements are also subject to secondary residence tax. A second home tax is only due for a camper if this is expressly provided for in the second home statute and minimum equipment features are specified there that upgrade a mobile home to an apartment.

Assessment basis

As a rule, the annual basic rent is the assessment basis for the second home tax. In individual municipalities, the gross annual rent (cold rent with certain cold operating costs) or living space is also used.

Often reference is made to Section 79 of the Valuation Act in the version dated September 26, 1974 ( Federal Law Gazette I p. 2370 ) with the stipulation that the annual gross rents, which in accordance with Article 2 of the Act amending the Valuation Act of 13 August 1965 ( BGBl. I p. 851 ) were determined by the tax office on the main date of determination January 1, 1964, each of which is extrapolated to September of the previous year for the survey year. The extrapolation shows the statistical increase in apartment rents in the period from January 1, 1964 to September 30 of the year preceding the respective survey period. The Federal Fiscal Court considers this reference to the unit values ​​to January 1, 1964 to be unconstitutional with regard to property tax and has submitted this question to the Federal Constitutional Court.

If there is no rent, for example if living space is provided free of charge, the comparative rent customary in the location is used as a calculation standard. In Neuruppin , a fixed rate is charged per square meter of living space, staggered according to location and year-round usability.

tax rate

The tax rate is currently between 8% in Hamburg and Kassel and 28% in Überlingen , usually between 10% and 15%. Some municipalities and cities levy a tax that is graduated according to certain criteria.

In 2014 the Federal Constitutional Court declared the degressive tax rate based on rent expense levels (including the city of Konstanz and Leipzig ) to be unconstitutional, as it violated the fundamental right to equal treatment under Article 3 (1) of the Basic Law .

liberation

With a statute that is linked to the right to register, it is not taxable anyone who maintains a secondary residence for professional reasons from married persons who are not permanently separated and whose marital homes are in another municipality.

The articles of association stipulate when the second home tax is exempt. Frequently occurring reasons for exemption are

  • Apartments that are made available by public or charitable organizations for therapeutic or educational purposes;
  • Apartments in old people's homes , old people's homes and nursing homes , in facilities for the temporary admission of people in need of care and in similar facilities;
  • Offenders incarcerated in prisons ;
  • Secondary apartments that minors or persons still in training have with their parents or with one / both parents, provided they are financially dependent on their parents;
  • Apartments whose owner is not yet 16 years old (parents are required to register);
  • Secondary dwelling owners who are soldiers or law enforcement officers and move into communal accommodation;
  • Secondary residence owners who are registered in Germany and who justify a temporary stay in an accommodation facility for no longer than two months.

Low income can be an exemption reason. In Pirna, for example, students with no income are exempt. In Bavaria, people whose total positive income does not exceed 29,000 euros are exempt from secondary residence tax upon application.

There is no obligation to generally exempt BAföG students from collecting the second home tax, but the tax can be waived or deferred in individual cases. The Federal Constitutional Court has approved the second home tax for adult students, but left it open whether this also applies to students under the age of 18 who, according to Section 12 (2) of the Federal Registration Act, may only have their main residence with their parents / custodians and not at the place of study.

Historical development

The first tax on second homes was introduced by the municipality of Überlingen (Lake Constance) on January 1, 1973. In the following years, the Überlingen model was judicially examined across all instances for its admissibility. In 1983 the Federal Constitutional Court classified the second home tax as a “legally permissible local expense tax”.

It was introduced more frequently in the city-states as well as in university cities than elsewhere.

In Bavaria , the second home tax was not permitted until August 1, 2004; the municipal tax law (KAG) contained a corresponding ban. Numerous cities and towns have introduced it since the ban was lifted.

Reasons for the introduction

During Fiscal Transfers persons be considered only with the main house. The respective municipality receives no money for a person with a secondary residence , but it has certain additional expenses for facilities that are typically only used sporadically by the second home owner and therefore not fully utilized (in holiday regions e.g. swimming pools).

Cities and municipalities are hoping for the secondary residence tax

  • immediately higher income
  • higher key assignments through re-registration

Large cities in particular (e.g. Magdeburg , Dresden) hope to generate around 75% of the additional income from increased key allocations. In this respect, the efficiency of the second home tax (administrative expenses versus tax revenue) plays a subordinate role.

Municipalities with second home tax

There are already a number of cities that have introduced or intend to introduce this tax. In Baden-Württemberg and Bavaria alone, over 100 municipalities each levy a second residence tax.

The city of Baden-Baden levies high taxes on second homes, which are not capped. A tax rate of 20% is set for a portion of the annual rental cost of up to EUR 2,500. A rate of 27.5% applies to the portion between 2,500 euros and 5,000 euros, the portion over 5,000 euros is taxed at 35%.

Example: For an annual rental cost of 12,000 euros, (2,500 euros × 20%) + (2,500 euros × 27.5%) + (7,000 euros × 35%) = 3,637.50 euros.

Legal position

According to the decision of the Federal Constitutional Court, persons who have their second home in the same place as their first home may not be exempted from taxation unless there is an objective reason that would justify this unequal treatment.

The Federal Constitutional Court has considered whether a second home tax for individuals is permitted, because of their professional situation to the second home (so-called purchase second home ) are dependent. This applies in particular to employed persons and possibly students / trainees who have a first home.

According to the decision of the Federal Constitutional Court of October 11, 2005, married couples have an exception to the second home tax liability if the statutes refer to the main residence subject to registration law. Spouses who have an apartment in another city because of their job do not have to pay taxes on their second home in such cases. The judges in Karlsruhe therefore declared the regulations of the cities of Hanover and Dortmund to be null and void. As a justification, they cited that such a tax discriminated against marriage and placed a special burden on the spouses' decision to share a marital home.

A decision by the Lüneburg Higher Administrative Court is still pending . The administrative court in Lüneburg exempted a student from paying the tax, as a second home always requires the owner of a main (first) home. The city of Lüneburg has appealed against this judgment.

According to the Higher Administrative Court of Rhineland-Palatinate , a student usually does not have to pay any second home tax (taxable ability), this was taken over by the Mainz Administrative Court in main proceedings.

At the Federal Administrative Court (BVerwG) in Leipzig there were four requests for revision from cities that do not recognize judgments by (higher) administrative courts in which it was established that having a second home always requires having a first home. On September 23, 2008, the BVerwG ruled in these proceedings that federal law neither requires nor prohibits the exemption of students from the second home tax. Only the appeal against the ruling of the Mecklenburg-Western Pomerania Higher Administrative Court was rejected, since the regulations of the city of Rostock's second home tax statute had been violated, regardless of federal law. The judgment cannot be transferred to other municipalities, which have made other stipulations on the definition of housing in their statutes. In further appeal proceedings, the Federal Administrative Court followed this decision for other federal states as well.

On February 17, 2010, the Federal Constitutional Court did not accept a constitutional complaint submitted by a student from Aachen who had been brought to the ZWS and stated in the reasoning:

  1. It is constitutionally permissible to levy a second home tax even if the owner of the second home does not have a legally secured power of disposal over his first home (so-called children's room cases ).
  2. When determining the constituent feature of the second home, the statutory authority may refer to the right to report. In particular, he may refrain from extending the second home tax to people who have a main residence abroad and who are not registered with a secondary residence in the municipality because a sole residence in Germany cannot constitute a secondary residence under registration law.

In 2014, the Federal Constitutional Court ruled that the second home tax should not be levied degressively (i.e. lower as the rent increases).

Others

In May 2014 it became known that some federal politicians had not registered their residence in Berlin as a place of residence.

Web links

Individual evidence

  1. Archived copy ( memento of the original from November 20, 2016 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.pnn.de
  2. Higher Administrative Court Schleswig-Holstein, Az .: 2 LB 97/17. Quoted from: Second home tax for long-term campers is not always legal. In: merkur.de. April 30, 2019, accessed February 15, 2020 .
  3. BFH, decision of October 22, 2014, Az. II R 16/13, full text = BStBl. 2014 II 957.
  4. https://www.neuruppin.de/fileadmin/daten/Verwaltung_und_Petzung/Ortsrecht/Steuern/Zweitwohnungssteuer_.pdf
  5. BVerfG, decision of January 15, 2014, Az. 1 BvR 1656/09, full text .
  6. Copyright Haufe-Lexware GmbH & Co. KG - all rights reserved: Unconstitutionality of the second home tax | Taxes | Heap . In: Haufe.de news and specialist knowledge . ( haufe.de [accessed on May 17, 2018]).
  7. ^ Bavarian State Ministry of the Interior, for Sport and Integration : Second Home Tax - Exemption Options .
  8. BVerwG, judgment of September 17, 2008, Az. 9 C 14.07, full text ; namely the principle of the welfare state ( Article 20, Paragraph 1 of the Basic Law) does not generally require students who receive benefits under the Federal Training Assistance Act (BAföG) to be exempted from paying secondary residence tax.
  9. BVerwG, judgment of September 17, 2008, Az. 9 C 14.07, full text ; "This does not exclude taking into account a lack of performance in individual cases, for example by way of a decree for reasons of equity ( § 163 , § 227 AO ) or a deferral ( § 222 AO)."
  10. BVerfG, decision of February 17, 2010, Az. 1 BvR 529/09, full text ; The second home tax set against the complainant corresponds to the constitutional requirements for a local expense tax within the meaning of Article 105, Paragraph 2a of the Basic Law (1.). It does not violate the general principle of equality from Article 3, Paragraph 1 of the Basic Law (2nd), nor the family protected in Article 6, Paragraph 1 of the Basic Law (3rd) or the freedom of movement guaranteed in Article 11 of the Basic Law (4th).
  11. BVerfG, decision of February 17, 2010, Az. 1 BvR 529/09, full text ; The right to report referred to in the tax statutes is non-discriminatory for children of legal age based on which apartment is predominantly used.
  12. Thomas Birtel: On Second Home Tax Law Yesterday and Today - Professor Dr. iur. Hermann-Wilfried Bayer on his 80th birthday. KStZ 2013, 21
  13. a b BVerfG, decision of December 6, 1983, Az. 2 BvR 1275/79, BVerfGE 65, 325 .
  14. Second residence tax: who has to pay it and when it is due . Immowelt AG website. Retrieved October 29, 2015.
  15. Second home tax statute of Baden-Baden ( Memento from September 27, 2013 in the Internet Archive )
  16. BVerfG, decision of October 11, 2005, Az. 1 BvR 1232/00, 2627/03, full text = BVerfGE 114, 316 .
  17. ^ VG Lüneburg , decision of July 28, 2004, Az. 5 B 34/04, full text .
  18. ^ VG Lüneburg, judgment of February 16, 2005, Az. 5 A 118/04, full text .
  19. ^ OVG Rhineland-Palatinate , decision of January 29, 2007, Az. 6 B 11579/06, full text .
  20. BVerwG, judgment of 23 September 2009, Az. 9 C 13.07 full text ; Second home tax in the Hanseatic city of Rostock.
  21. BVerfG, decision of February 17, 2010, Az. 1 BvR 529/09, full text , rejection of the constitutional complaint on the second home tax in "children's room cases ".
  22. Second home tax must take into account the ability to pay. Südkurier February 14, 2014 ( Memento from February 25, 2014 in the Internet Archive )
  23. According to the Greens parliamentary group leader Anton Hofreiter, more and more politicians in Berlin are “coming out” of having failed to register their residence in the capital. The second home tax takes on such astonishing importance. in: FAZ .