Maintenance payments to civil war refugees with a residence permit under sect. 23 of the Residence Act will be deductible under sect. 33a para. 1 of the Income Tax Act (EStG). In this case, the legal obligation to pay maintenance does not apply. However, it is a prerequisite that the supporter has submitted a declaration of commitment in accordance with sect. 68 of the Residence Act and assumes all costs for the payment of maintenance (Federal Ministry of Finance's (BMF) letter of 27.05.2015, IV C 4 - S 2285/07/0003).
The Cologne Fiscal Court has recently ruled that expenses for the maintenance of a sister and her family from Ukraine, a country at war, for whom the taxpayer had submitted a declaration of commitment under sect. 68 of the Residence Act (AufenthG), are deductible as exceptional costs of a general nature under sect. 33 of the Income Tax Act (EStG) - with offsetting of a reasonable burden, but without limitation to a maximum amount (FG Köln of 09.04.2019, 15 K 2965/16, appeal VIII R 39/19).
The Cologne Fiscal Court had ruled that expenses for the maintenance of the sister and her family from Ukraine, a country at war, were deductible because the taxpayer had submitted a declaration of commitment (Verpflichtungserklärung). (Cologne Fiscal Court of 09.04.2019, 15 K 2965/16).
However, the Federal Fiscal Court has recently overturned the favourable ruling of the Cologne Fiscal Court and ruled against the taxpayers who are willing to support others. Expenses for relatives who are not entitled to support are not deductible as exceptional costs, neither according to sect. 33a of the Income Tax Act (EStG) nor according to sect. 33 of the Income Tax Act (EStG). This also applies if the supporter has submitted a declaration of commitment pursuant to sect. 68 of the Residence Act (AufenthG), according to which he or she will assume the costs of living for his or her relatives (Ruling of the Federal Fiscal Court (BFH) dated 02.12.2021, VI R 40/19).
