revision of the tax account of a home office decision of the Constitutional Court on the tax account of the costs of a study
Press Release No. 55/2010 of 29 July 2010
order of 6 July 2010 - 2 BvL 13/09 -
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revision of the tax account of a home office unconstitutional
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With the Finance Act 1996 § 4 para 5 sentence 1 no restricted 6b
the tax recognition of expenses for business purposes only
used for home offices as
business expenses or business expenses for the first time. A
exception to the principle regulated prohibition on the deduction of such
expenses was then when the commercial or professional
use of the study was more than 50% of all operational and
professional activities or for operational or
occupation no other workplace was available. A
unlimited deduction was also only allowed
when the center for all operational and
formed professional activity. The Federal Constitutional Court in its ruling of 7
December 1999 (BVerfGE 101, 297)
the constitutionality of this restriction in the affirmative.
With the Tax Amendment Act 2007 limited the deduction further
. § 4 paragraph 5, sentence 1, No. 6b allows the deduction of expenses
for a home office and the cost of
facilities only if the work is the focus of
all operational and training activities. The plaintiff in the
the case, the self-employed as secondary school teachers is
used it daily for two hours exclusively used for business purposes
home office. The registration of the assignment of a
job at school was the preparation and evaluation of teaching
been rejected by the school. The tax office made by the applicant
in his income tax return for 2007 claimed
expenses for domestic work ignored. The
therefore, against a Tax Court action brought for the presentation of the financial
court.
The Second Division of the Federal Constitutional Court by a majority vote of 5:3
decided that the new rules in § 4 Paragraph 5, sentence 1 fails
No. 6b, contrary to the principle of equality, where the
are expenses for a home office also excluded from the tax
considered if the company or professional activity
no other workplace
is available. The legislature is required thereafter, retroactive to 1
January 2007 revision of § 4 remove 5 sentence 1 No. 6b
the Income Tax Act unconstitutional condition. The courts and administrative authorities
may apply the provision in the magnitude of the identified
incompatibility with the Constitution no longer running
process should be suspended.
the decision is essentially based on the following considerations:
The general principle of equality requires the income tax legislation
oriented towards financial capacity sufficient
logical design of its exposure decisions. The calculated load for the
equality in income tax law
substantial financial capacity, inter alia, to the objective
net principle. After that are operationally or professionally led
expenses as business expenses or business expenses from the
base removable. Detrimental exceptions to this basic decision
burden of income tax legislation require
a particular objective reason to meet the requirements of
general principle of equality. This is not the
here. The procedure mentioned in the legislative
fiscal reasons are not sufficient to justify the new rules before the
general principle of equality. The aim of
revenue increase is, in itself not a sufficient factual basis for
exceptions to a logical design
income tax law burden decisions dar. For the purpose of the revenue increase is
each, even an arbitrary
tax burden.
missed Moreover, the new rules the requirement of a sufficiently
reality-oriented typing, as far as charges for domestic
work are not taken into account if the company or professional activity
no other workplace
is available. Because of the lack of an alternative workplace,
can be demonstrated by presenting a certificate from the employer without
further, an easily verifiable
factual basis provides for a finding of actual operational or
business use and therefore the possibility of stereotyping
definition of gainful and privacy. However, the identification and determination of the
after deduction of the new rules ban excluded
cost of a study that the "qualitative" "center" of the entire company is
or profession, clearly
consuming and prone to dispute. In terms of the objectives of the law -
simplification, dispute avoidance and uniformity of taxation -
, the deduction prohibition as far as the group of cases, "no other
work" is concerned, the requirements of a realistic fair
therefore not just typing.
Over extension of the constitutional review
decided the Federal Constitutional Court, however, that the extension of the ban should
deduction of the general Violation of equality, insofar as these are now also
expenses for a home office
recorded, which is more than 50% of the total operating
or professional activity exclusively used for business or professional
. The extent of usage of the study is at best a weak indicator of the need
if the taxpayer from his employer
found another job is available
. It also lacks easily verifiable objective evidence
for the control of information from the taxpayer to the extent of
time use of the study.
