(2023)
Can the costs for a family member's care home be declared in the tax return?
Payments for the residential care of a close relative - whether demanded by the social services or made voluntarily by you - are tax-deductible as extraordinary expenses under § 33 EStG if the payments are "compulsory" for you due to legal or moral reasons.
When is this the case?
(1) A legal obligation to provide support generally exists for relatives in the direct line (§ 1601 BGB):
- Not only are parents legally obliged to support their children, but children are also obliged to support their parents. The maintenance obligation of children mainly arises when parents are in a retirement home or a care home due to the need for care and cannot finance the high care costs from their income and assets. If the social services cover the uncovered additional costs, the maintenance claim is transferred to the social welfare agency under the Federal Social Assistance Act, and they will involve the children according to their income.
- Relatives in the direct line also include grandparents: However, their children are primarily obliged to provide support, not the grandchildren (§ 1606 BGB). Even if the grandchildren are not asked to contribute by the social services, they often make voluntary payments to support their grandparents. In this case, there is not a specific maintenance obligation, but merely an abstract one. This is sufficient to affirm a legal obligation (R 33a.1 para. 1 sentence 3 EStR; OFD Frankfurt dated 5.5.1998, DB 1998 p. 1160).
- A legal maintenance obligation can also arise towards a divorced spouse (§§ 1361, 1569 BGB) or towards a partner in a registered civil partnership (§§ 5 and 12 LPartG), so a legal obligation is also given here.
(2) A moral obligation may apply to other relatives within the meaning of § 15 AO (siblings, parents-in-law, son-in-law and daughter-in-law, stepparent, uncle, aunt, niece, nephew, brother-in-law, sister-in-law, foster parents with foster children): According to the BFH, this is to be assumed "if, in the opinion of the majority of fair and just-thinking fellow citizens, a taxpayer may feel obliged to behave in such a way.
Morally commendable or particularly praiseworthy reasons alone are therefore not sufficient. The moral imperative must rather appear as a demand or at least an expectation of society in such a way that failure to comply may result in disadvantages in the moral or social sphere" (BFH judgment of 22.10.1996, BStBl. 1997 II p. 558).
