2023-07-07 16:58:23
Ten years ago, the Lower Saxony Finance Court asked the Federal Constitutional Court whether the solidarity surcharge was unconstitutional as it was then formulated. On Friday, the financial judges in Hanover received an answer that resembled a gossip from Karlsruhe.
The finance court is attested to be essentially sloppy. The draft is inadmissible because the constitutionality of the norm in the Solidarity Surcharge Act that was criticized was not examined carefully enough in Hanover, according to the chamber decision dated June 7 (2 BvL 6/14).
As far as the finance court thinks that the solidarity surcharge is not a supplementary tax within the meaning of the Basic Law, “there is a lack of an argumentative discussion of case law and literature,” the chamber complains. The Federal Constitutional Court recalls that the Federal Fiscal Court (BFH) affirmed the constitutional conformity of the soli for the disputed year 2007, which is also the subject of the Hanover proceedings, with detailed reasons. However, the judges in Hanover did not take into account the judgment of the highest German finance court from 2011.
Originally, the solo was temporary
In the initial proceedings, a senior employee had filed a complaint against the determination of the solidarity surcharge for the 2007 assessment period. He argued that the Soli was a supplementary levy to cover peak household needs. For this reason, it may only be levied in exceptional cases, but not permanently. The solidarity surcharge was introduced in 1991 to deal with the financial challenges of reunification. Originally, the supplementary fee was limited to one year, but as is well known, it didn’t stop there.
According to the finance judges, the solos should have been omitted in the disputed year 2007 in view of the comprehensive tax reductions in previous years. Here too, however, the Federal Constitutional Court is missing an argument with the opposing voices in case law and literature, which assume that the federal government will continue to need funding, which justifies the continued levying of the solidarity surcharge. The “selective tax cuts” referred to by the finance court “by no means reached the volume of the annual income of more than 10 billion euros achieved through the solidarity surcharge,” according to the decision.
The Finance Court had also assumed a violation of the principle of equality in the Basic Law. As justification, it referred to various tax reductions in connection with the determination of the solidarity surcharge. However, the Karlsruhe court already doubts that unequal treatment can be assumed as a result. It is “questionable whether the only indirect effects of norms of income and corporation tax law in the context of the solidarity surcharge lead to unequal treatment that requires justification.
Ultimately, however, the question can remain open. “In any case, there is a lack of a careful examination of possible justifications” for the unequal treatment of the plaintiff assumed by the tax court. The Federal Constitutional Court refers here to the possibility of legal typification and simplification.
Second gossip from Karlsruhe
It is the second time that the Federal Constitutional Court has dismissed the Lower Saxony Finance Court in the dispute over the solidarity surcharge. As early as 2009, the financial judges presented the case, which was now being discussed again, in Karlsruhe. But the Federal Constitutional Court rejected the first submission as inadmissible in 2010, for similar reasons as this time.
The Finance Court did not adequately justify its view that the solidarity surcharge was unconstitutional. It also failed to take sufficient account of the 1972 Karlsruhe decision on supplementary taxes. At that time, Karlsruhe decided that it was not constitutionally necessary to limit a supplementary tax. The question of whether there would be a constitutional compulsion to abolish the supplementary levy if the conditions for its levy “evidently” no longer apply was expressly left open.
Katja Gelinsky, Munich Published/Updated: , Recommendations: 42 Friederike Haupt, Berlin Published/Updated: , Recommendations: 33 Volker Looman Published/Updated: , Recommendations: 83
The question of whether the soli can still be levied at all also arises in the two proceedings on the solidarity surcharge, which the Karlsruhe court still has to decide on. Several FDP politicians and two associations have lodged a constitutional complaint against the fact that around 10 percent of taxpayers have had to continue paying the supplementary tax since 2021, which the traffic light government has abolished for the vast majority of taxpayers. With a judgment in January of this year, the Federal Fiscal Court ruled that the solidarity surcharge was “not yet unconstitutional”. It is still unclear when the last word will come from the Federal Constitutional Court.
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