Offsetting of advance payments of income tax.
November 29, 2013 | 25,00 EUR | answered by Anton Pernitschka
Good day,
I got married in September 2012, my husband has tax debts from about 10 years ago. I am the only one earning taxable income (both as an employee and self-employed), and I received income tax prepayment notices until 2013 (before the marriage), which I fulfilled. Our first joint tax return was for 2012 (my husband only receives EUR 400.00 per month), and in the recent tax assessment we received, my prepayments are offset against my husband's outstanding debts from 2003, so there is no refund of the overpaid amounts. Can I challenge this decision, and if so, what steps should I take?
Thank you for your response.
Dear questioner,
In the context of an initial consultation and your fee commitment, in compliance with the rules of this forum, I would like to answer your question.
Tax debts are personal debts of the respective spouse in which they were incurred. However, in the case of joint assessment of spouses, the tax office usually addresses both spouses as joint debtors.
In the event of enforcement, there is the possibility, according to § 258 of the Tax Code (AO), to apply for the division of the tax and thus achieve a limitation of enforcement to the respective tax debtor. Each joint debtor would then only be liable for their own tax debts. However, § 278 of the Tax Code (AO) allows the tax office to enforce, after the division, into the assets of the spouse without debts to the extent that assets were gratuitously transferred to them by the tax debtor.
In your case, your advance payments generally cannot be offset against the outstanding claims of the tax office against your husband from 2003. However, in accordance with § 268 of the Tax Code, an application for the division of income tax debt must be submitted to the tax office. This leads to each spouse being treated as if they had been assessed individually. However, § 278 of the Tax Code could possibly still be invoked by the tax office.
Best regards,
Anton Pernitschka
Tax Advisor
