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alone put to the test
The solidarity surcharge of the article can be seen on a payment slip. © Jens Büttner/dpa-Zentralbild/dpa

Since the end of 2019, the solidarity surcharge only applies to those with higher incomes. But isn’t the tax unconstitutional since then? A new case for Karlsruhe is in the offing.

Munich – The Federal Constitutional Court may have to decide on the end of the solidarity surcharge. On January 30, the Federal Tax Court in Munich intends to announce the decision on whether to file a lawsuit against the tax, now only paid by top earners, to Germany’s highest court in Karlsruhe. This is what BFH President Hans-Josef Thesling said at the end of the oral hearing on Tuesday. A trend came out of the IX. The Senate, however, does not recognize it.

The plaintiffs are spouses from Aschaffenburg in Lower Franconia who, with the support of the taxpayers’ association, want to strike down the unpopular surcharge. They argue that solidarity compensation is now unconstitutional in two respects.

On the one hand, the original purpose has been abandoned: the tax was used to finance the Solidarity Pact II, which expired at the end of 2019 and was intended to finance infrastructure development in eastern Germany.

Obviously, the plaintiffs are less concerned with money than with principle: they lost in the first instance at the Nuremberg Finance Court, but the Aschaffenburg tax office reduced the advance payment of the solidarity surcharge to EUR 19 per quarter.

No ordinary tax

From a legal point of view, the solidarity surcharge is not an ordinary tax, but a “supplementary tax”, according to the tax lawyer Roman Seer, representing the two plaintiffs.

The director of the Institute for Tax Law at the University of Bochum argued that supplementary levies are “purpose taxes”: if the purpose no longer applies, the associated levy should also be omitted. Other tax attorneys have also taken this view in recent years. There has been no special funding for the new federal states since the end of 2019, Seer said. “The federal and state governments agreed that the III Solidarity Pact should not exist.”

In addition, the plaintiffs and their lawyers accuse the federal government of violating the Basic Law’s principle of equality, because only a small minority of taxpayers have to pay the tax, but not the vast majority.

In the 2019 law on the return of solidarity compensation, the coalition at the time decided that only the highest earners, the top ten percent of income, would have to pay the surcharge. The remaining ninety percent of taxpayers must remain exempt. According to Seers, about 2.5 million people still pay the solidarity surcharge. “It’s really an additional income tax,” the law professor said.

Is the solo misused?

The taxpayers’ association accused the traffic light coalition of having completely misappropriated the solidarity surcharge: “The solidarity surcharge has now become a tax on the rich through the back door,” President Reiner Holznagel said after the audience.

Meanwhile, the position of the Federal Ministry of Finance has also changed. The then Federal Minister of Finance and current Chancellor Olaf Scholz (SPD) was tasked with maintaining the solidarity surcharge until autumn 2021. The Ministry of Finance joined the legal dispute during Scholz’s tenure as Minister. This means that the ministry initially wanted to dismiss the lawsuit as unfounded.

However, under current department head Christian Lindner (FDP), the Finance Ministry has withdrawn its involvement in the process, as BFH Chairman Thesling said. From this it can be seen that Lindner would have nothing against the solidarity surcharge eventually being struck down by a supreme court. Whether Lindner agreed with Scholz or changed the line that applied under his predecessor on his own initiative, he played no role in the negotiation.

The 9th BFH Senate has obviously already formed an opinion, but has not indicated in any way what its decision might be. Contrary to what is customary in oral hearings, the judges did not ask a single question of the plaintiffs or the defendant tax office in Aschaffenburg. dpa

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