Spanish income in income tax declaration?
May 31, 2012 | 40,00 EUR | answered by Dr. Yanqiong Bolik
Hello,
I am a German citizen, my husband is a Colombian citizen. We got married here in Germany in August 2011. Our child was born in September 2011.
In 2011, my husband was officially registered in Germany twice: from 1.8.-30.11.11 and from 1st December 2011 onwards. He has had a German residence and work permit since 1st January 2012 (before that, only a Spanish one). The last relocation flight to Germany was on 23rd December 2011.
In 2011, my husband worked in Spain and paid taxes there. (Before that, he received scholarships there). His contract ran from 28th April to 31st December 2011 and was a part-time contract (20 hours per week). He lived in Spain on rent throughout this period. He visited Germany 5 times in 2011, each time for 3-4 weeks. (The days off were taken from vacation entitlements, paternity leave, and overtime leave). I also visited Spain twice.
I was fully tax liable in Germany in 2011 (until the start of maternity leave/parental leave on 19th August, before the marriage). My tax class was I throughout.
We both have only income from employment, no capital gains, etc.
My questions:
Can/must we submit a joint tax return in Germany? Is there a deadline for this? (My tax class in 2011 was I).
Should the Spanish income and taxes paid by my husband be declared in the German tax return? If yes, where should they be indicated? Should the Spanish tax return be done first for this?
Can we claim for double household expenses? From when? Are both of our flight costs deductible, or only his? Are there any other considerations? For example, what receipts does the tax office need to see?
Thank you in advance!
Dear inquirer,
Thank you for your inquiry, which I will gladly answer taking into consideration your input and the rules of this platform.
Please note that my explanation is based on the facts presented, and that adding, omitting, changing information, or the ambiguity of the information can alter the tax result.
1. You have been married since August 2011. You can choose between joint taxation or separate taxation if the following conditions were met in 2011: a) Both spouses are subject to unlimited tax liability in Germany. b) You do not live permanently separated. In Germany, someone is subject to unlimited tax liability if they have a residence or habitual abode in Germany. You have a residence in Germany and are therefore subject to unlimited tax liability. Based on the facts presented, your husband may have occupancy of your apartment, meaning that he will retain and use it. Regardless of whether your husband was registered, the tax law concept of residence is objectified: it focuses on the actual circumstances and overall external features, without allowing room for subjective elements or intentions (cf. BFH judgment of November 23, 1988, II R 139/87, BFHE 155, 29, BStBl II 1989, 182). The determining factor is the objective state, namely the occupancy of an apartment under circumstances that justify the conclusion that the occupant will retain and use this apartment constantly or with some regularity and habit. It must be probable, based on the overall circumstances, that the taxpayer will continue the non-temporary use of the apartment in the future (cf. BFH decision of November 5, 2001, VI B 219/00, BFH/NV 2002, 311; Buciek in Beermann, Tax Procedure Law, § 8 AO margin no. 37 ff.). The tax authorities generally consider that a spouse/father has his center of life where his family lives. According to this view, your husband has established a residence in Germany since August 2011 and has therefore become subject to unlimited tax liability in Germany. When determining whether the spouses live permanently separated, it is generally necessary to examine whether there is a common household. If this is the case, the spouses do not live permanently separated, even if they are physically separated for professional reasons. Based on your explanation, the conditions for joint taxation in 2011 have been met. You can (but are not required to) submit a tax return together. If you do not have tax advice, the deadline for filing the 2011 income tax return is May 31, 2012.
2. With the establishment of unlimited tax liability in Germany in August 2011, your husband's worldwide income must be included in his income tax return since August 2011. The income from employment in Spain must be reported in Annex N-Aus. If this income is taxable in Spain, it will be excluded from the basis of German tax and only taken into account when determining the tax rate (progression clause). He does not need to declare the tax paid in Spain. He can report expenses for double household management (provided that the residence in Germany is his center of life) in Annex N-Aus, from the point when the double household management was established, probably in August 2011 in your case. The costs of weekly trips to the main residence that your husband incurs are considered expenses for double household management. Expenses for the second residence at the place of employment are also deductible. The actual costs, including second residence tax (R 9.11 Abs. 8 LStR 2008), are recognized, but limited to the average rent of a 60 sqm apartment at the place of employment (BFH judgment of August 9, 2007). In general, taxpayers must always provide proof of the costs incurred if requested by the competent tax office. Therefore, you should keep all receipts safe.
I hope I could be of assistance to you.
If there are still uncertainties, please feel free to use the follow-up function.
Best regards,
Dr. Yanqiong Bolik
Tax consultant
Bildstöckle 6, 70567 Stuttgart
Tel: +49 (0) 711 / 2132 1815
Email: info@zdbz.de
www.steuerberatung.zdbz.de
