Are spouses from abroad subject to unlimited tax liability?
March 8, 2011 | 30,00 EUR | answered by Dipl.BW/SB Ulrich Stiller
Dear Sir or Madam,
a brief overview of the key facts:
- I was married to an Indonesian woman from mid-2002 to mid-2010. We lived together in Germany. Divorce in June 2010. Maintenance payments in the form of a lump sum of 15,000 EUR - paid in cash in 2010.
- The divorced woman is still registered in Germany but currently in Indonesia. Uncertain return to Germany.
- Remarried in Indonesia in November 2010. My new wife followed in March 2011 due to the lengthy visa procedure. Before the marriage, my new wife visited me for nearly 3 months in the summer of 2010 and we lived together.
- February 2011 submission of the income tax return with signed attachment U (15,000 EUR) of my divorced wife. Estimated refund approx. 4,500 EUR.
- The responsible tax office may see a problem with the unrestricted tax liability of my new wife, as she only entered in March 2011.
- In 2010, I did not change tax class 3 due to my new marriage:
Questions:
1) Can my new wife be considered for unrestricted tax liability due to her 3-month visit in the summer of 2010 (when we were not yet married)? Or what options do I have to claim the 15,000 EUR with joint assessment based on these facts?
2) If everything goes wrong, will I have to pay retroactively the difference between tax class 3 and tax class 1?
I would appreciate your advice, as I was counting on the refund.
3) If I am assessed for everything: Can I at least claim the 15,000 one-time payment, as my divorced wife was still living in Germany in 2010 and signed attachment U?
Thank you.
Dear Seeker,
Thank you for your inquiry, which I would like to answer based on the information provided and the context of your situation within the framework of an initial consultation as follows:
You do indeed have a problem.
For joint assessment, both spouses must be unlimitedly liable for income tax. It is necessary for both spouses to have a residence or habitual residence in Germany, with habitual residence requiring a continuous stay of more than 6 months, which is unlikely in the case of your second wife, so only a residence can be targeted. Only through marriage in 2010 does your second wife not automatically share the common matrimonial home; this will only be used jointly in 2011. At the time of the marriage in 2010, both spouses must be unlimitedly liable for income tax. This is lacking here, as your wife only moved in 2011, so joint assessment with your second wife will not be possible in 2010.
However, you could consider joint assessment with your first wife. In principle, joint assessment is only possible with the second wife in the same year upon remarriage. According to the wording of § 26 para. 1 sentence 2 EStG, joint assessment with the second wife would only be possible if she is unlimitedly liable for income tax. However, since she is not due to lack of residence in Germany in 2010, you could carry out joint assessment with your first wife according to § 26 para. 1 sentence 1 EStG in 2010, as you lived together for at least one day in 2010. This way, you can save tax class III and thus the splitting table. However, due to the application of the splitting table, a deduction of maintenance payments is not applicable.
For further steps, please feel free to contact me at my email address StillerStB@gmx.de.
I hope my explanations have been helpful to you.
Best regards,
Ulrich Stiller
Tax Advisor/Diploma in Business Administration
