German Law/Tax Refund for Joint Return: Who gets the return after divorce?
QUESTION: My (now ex-)husband separated and were living apart as of January 2012; we divorced October 2013. He and I filed joint tax returns in 2011 and 2012. We were married and living together in 2011. We were married but living apart in 2012. Are we both legally entitled to 1/2 of the tax refunds? For 2011 or 2012 or both? He received the refunds directly to his bank account and refuses to pay me half. Our divorce decree did not address this issue.
ANSWER: Disputes often arise between separated spouses about the distribution of a tax rebate for years in which they have at least partially still lived together. Many married people assume that tax refunds each spouse is automatically entitled to a share of one half of the tax refund. This view is not founded by case law renderred by the fiscal courts. In fact, the division of a tax liability and a resulting refund or additional payment claim has to be calculated internally pursuant paragraph 270 of the Tax Code on the basis of a fictitious separate assessment of the spouses (BGH , FamRZ 2006 , 1178 ).
In order to achieve this, numerous steps have to be taken:
- Firstly, is to by determine which spouse has contributed with the percentage to the taxable joint income .
- Secondly, the total tax burden of both spouses is to be distributed with the same proportion as their contributions to the taxable joint income .
- Thirdly, it must be figured out which spouse has already been effected which tax payments, for example by prior deductions from his/ her salary for wage or tax prepayments.
A spouse who has not contributed to the taxable income and who has made no tax payments for the tax period is not entitled a share in the refund.
However, if the advance tax payments of a spouse is higher than assessed according to the above method of calculating percentage of the total tax burden (this is common for the spouse taxed under the unfavorable tax class V), he/ she is entitled the tax refund to the amount corresponding to his overpayment.
It is advisable that separated spouses apply at the tax offce for an apportionment of the last jointly assessed tax. The tax office then calculates automatically which spouse is entitled to what proportion of the tax refund. Retrospectively, after the issuance of the tax assessment notice, no such appotionment can be requested from the tax office any more. Then you would need the assistance of a tax consultant.
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QUESTION: Thank you for your quick and thorough response. My ex-husband says he will not willingly give me any of the refunds from those 2 years, but is now trying to negotiate with me regarding the Anlage U. I spoke with my tax accountant and looked online but am unable to get a clear answer about the advantages and disadvantages of agreeing to sign this form.
Thank you again.
Signing the Anlage U would mean that you have to pay income taxes and that your husband can deduct his expenses for support fully from his income which can do only in part otherwise. Spouses often agree that husband shall compensate wife for the additional tax burden that is levied on her.
I think this Link should shed you some light in the issue: