(2022)
The "special church fee": Obligation to pay church tax for a non-denominational spouse.
Church tax liability generally applies only to members of a tax-collecting religious community who have their residence in Germany and within the area of this religious community. The decisive factor is formal membership, not the intensity of faith or participation in religious life. Therefore, anyone who does not belong to a tax-collecting religious community does not have to pay church tax. But does this also apply to spouses?
It is not uncommon for the well-earning spouse to leave the church to save on church tax, while the non-working spouse and children remain members of the church community. However, those who believe that no church tax needs to be paid at all could be mistaken.
If the church member spouse has no income of their own, no "church tax on income" can be levied. However, in mixed-faith marriages, the churches levy the "special church fee" as a special form of church tax, which is mainly used by the Protestant churches.
- The "special church fee" is demanded from the church member spouse who has little or no income and therefore does not have to pay church tax on income. In this case, the special church fee is based on the joint taxable income of both spouses. It is only levied if the joint taxable income is higher than 30.000 Euro, and only in the case of joint assessment, not in the case of individual assessment for spouses.
- According to the Federal Constitutional Court, it is constitutionally acceptable for the "special church fee" to be based on the living expenses of the church member spouse. In the case of joint assessment, the joint taxable income is used as an auxiliary measure. The levying of the special church fee is permissible, even if the income is only earned by the other - non-religious - spouse. In marriage as a living and economic community, each spouse has a half share in the income of the other (BVerfG decision of 28.10.2010, 2 BvR 591/06).
The European Court of Human Rights (ECHR) has recently ruled that the collection of church tax or the special church fee in a mixed-faith marriage does not violate the European Convention on Human Rights and is therefore permissible (ECHR decision of 6.4.2017, complaint no. 10138/11 et al.).
The case: The claimant does not belong to any religious community, his wife is a member of the Protestant Church. The couple applies for joint assessment - with the result that the man has to pay his wife's church tax of 2.220 Euro. This amount was deducted from a tax refund. He and four other complainants therefore argued before the ECHR that
- the assessment of church tax or church fee based on the joint income of spouses violated their rights under Art. 9 ECHR (freedom of religion) in several respects,
- they were required to pay the special church fee for their spouse without being a member of a church themselves,
- they were dependent on financial support from their spouse to pay the church fee and were thus dependent on their spouse in exercising their freedom of religion,
- they were obliged to pay a disproportionately high church tax because the income of the spouse was also taken into account in its assessment.
The Saxon Finance Court currently considers the regulation in Saxony on the special church fee in mixed-faith marriages to be incompatible with the Basic Law, as spouses were disadvantaged without objective reason compared to registered civil partnerships in 2014 and 2015. The regulation violated the general principle of equal treatment (decision of 25.3.2019, 5 K 1549/18).
The Bavarian State Ministry of Finance has recently announced that in Bavaria the Evangelical Lutheran Church and the Evangelical Reformed Church will waive the collection of the special church fee, retroactively from the 2018 tax year (decree of the Bavarian State Ministry of Finance of 21.1.2019, BStBl I 2019 p. 213).
The special church fee comes into play when one spouse does not belong to a tax-collecting church and the other church tax-liable spouse
- does not earn their own income,
- earns their own income that does not trigger income tax and thus no church income tax due to its low amount, or
- earns their own income that already triggers church tax, but results in a higher special church fee being set due to the so-called comparison calculation.
The Federal Finance Court has recently pointed out that even in the third case group, the assessment of the special church fee is constitutionally acceptable, although church tax is already due based on the individual's income (BFH decision of 5.10.2021, I B 65/19). The BFH refers to decisions of the Federal Constitutional Court (e.g. BVerfG decision of 28.10.2010, 2 BvR 591/06).
In this case group, no separate justification is required. The living expenses of the church tax-liable spouse increase "if they have their own income, but the spouse has significantly higher income" (so the judgment of the FG Cologne of 8.6.2005, 11 K 1389/03).
It is also obvious that the permissibility of levying the special church fee in this case group requires a regulation to clarify the relationship between the special church fee and the church income tax; e.g. a regulation to avoid double taxation with both types of tax. Corresponding credit regulations or comparison calculations are contained in the state legal or church tax regulations. They are legally unproblematic and have therefore not been objected to by the specialised courts and the Federal Constitutional Court.
Conclusion: Even in the third case group, the living expenses of the church member spouse may be taxed by means of the special church fee. For the sake of completeness, it should be noted that the special church fee is not levied uniformly throughout Germany.
