The "special church fee": Obligation to pay church tax for a non-denominational spouse.
In Germany, individuals who are members of a religious community that collects taxes are generally subject to church tax. This applies regardless of the intensity of one's faith or participation in religious life, as formal membership is the determining factor. But what happens in a marriage if only one spouse belongs to a religious community that collects taxes? In such cases, the so-called special church fee may apply, a special form of church tax. This article explains the key regulations and current legal rulings on this topic.
Church tax obligation: Basics of membership
In Germany, church tax is paid by members of a religious community that collects taxes, provided they have their residence or usual place of abode in Germany. Those who do not belong to such a community are exempt from church tax. In practice, however, it often happens that only one spouse in a marriage is subject to church tax. This raises the question of whether and how the non-religious partner is involved in the tax obligation.
Special church fee: Definition and requirements
The special church fee is a specific form of church tax that is levied in interfaith marriages under certain conditions. It applies if:
- the church member spouse does not earn any income,
- the church member spouse has an income, but it is so low that no income tax (and therefore no church tax) is due, or
- the income of the church member spouse leads to church tax, but the comparative calculation results in a higher special church fee.
Basis for calculating the special church fee
The special church fee is calculated based on the joint taxable income of both spouses. The following applies:
- It is only levied in the case of joint assessment, not in the case of individual assessment.
- The basis for assessment is the couple's income, regardless of whether the church member spouse earns an income or not.
- It is only levied from a joint taxable income of 30.000 Euro.
This regulation is based on the assumption that spouses are considered an economic unit. The Federal Constitutional Court (BVerfG) has confirmed this practice as constitutional (BVerfG decision of 28.10.2010, 2 BvR 591/06).
Legal rulings and current developments
European Court of Human Rights (ECHR)
In 2017, the ECHR confirmed that the German practice of collecting church tax and the special church fee in interfaith marriages does not violate the European Convention on Human Rights (ECHR) (ECHR decision of 6.4.2017, complaint no. 10138/11 et al.). The court emphasised that church tax regulations fall within the scope of religious freedom and state legislation.
Saxon Finance Court
In 2019, the Saxon Finance Court declared that the regulations on the special church fee in Saxony for the tax years 2014 and 2015 violated the principle of equal treatment. Spouses were disadvantaged compared to registered civil partnerships without any objective reason (decision of 25.3.2019, 5 K 1549/18).
Federal Finance Court (BFH)
In 2021, the BFH clarified that even in cases where the church member spouse earns an income, the collection of the special church fee is constitutionally unproblematic (BFH decision of 5.10.2021, I B 65/19). This is particularly true if the income of the non-religious partner is significantly higher, leading to an assumed higher standard of living for the church member spouse.
Regional differences and special regulations
The collection of the special church fee varies depending on the federal state. In Bavaria, the Evangelical Lutheran Church and the Evangelical Reformed Church have completely waived 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). Such regulations highlight the heterogeneity of church tax collection in Germany.
Conclusion
The special church fee is often a controversial topic, especially in interfaith marriages, and can lead to misunderstandings. It is generally only levied if the church member spouse either has no income or only a low income. The calculation is based on the joint income, which is considered justified by the courts. Differences in collection between federal states, however, require careful examination in individual cases.
