From 2015, banks are legally obliged under Section 51a of the German Income Tax Act (EStG) to request the church affiliation of all their customers from the Federal Central Tax Office and, if a customer is a member of one of the 67 religious communities that collect church tax, to pay the church tax on investment income, currently eight to nine percent, to the tax offices, which then pass this on to the respective church. This is a clear violation of the principle of informational self-determination. It is none of a bank’s business whether and, if so, to which religion a bank customer belongs. The legislator has itself recognized that this is an infringement of the right to informational self-determination, which cannot be justified by the fact that it gives the churches the opportunity to prevent their members from not declaring their taxable investment income, and has therefore established a possibility to prohibit this query. Anyone can submit a declaration to the Federal Central Tax Office stating that they object to their data being passed on to the banks. The official form required for this purpose, entitled ” Declaration on the blocking note “, can be downloaded from the website of the Federal Central Tax Office(www.bzst.de under “Taxes national”, Church tax on flat-rate withholding tax, Forms). Anyone who does not want their bank to be informed of their religious or non-religious affiliation is advised to have a corresponding blocking note entered. Anyone who has a blocking notice entered will then be obliged to submit an income tax return from 2015.
Background
This scandalous legal regulation came about in the following way: In 2010, the EU had issued a directive obliging its member states to provide each other with administrative assistance in the collection of taxes. Religious communities are not mentioned in this directive, which is self-evident, as there is no provision anywhere in the EU outside of Germany that leads to the state collecting membership fees from churches. All countries were obliged to transpose this directive into national law. While there was no mention of an automated deduction of church tax from investment income in the Ministry of Economic Affairs’ draft bill for the Recovery Directive Implementation Act, the government draft of May 2011 provided for such a procedure to be prescribed by law for the first time. It was clear that this would lead to considerable additional work for the state tax authorities, for which there is no adequate compensation (see Bundesrat printed paper 253/11). Section 51a, para. 2e EStG (old version) already included a request to the Federal Government to examine whether an automated withholding tax deduction should also be introduced for churches. The churches then used the implementation of the EU directive to ensure that the banks – as was previously the case with employers for church wage tax – are now also obliged to act as auxiliaries for the collection of contributions from church members. The procedure is therefore just as unconstitutional as the collection of church income tax. Previously, church members had to declare their income from capital gains themselves in their income tax return so that church tax could be deducted from it. As the churches suspected that not all of their members had done this – the evasion of church tax is not punishable by law – the same automatic mechanism as for state capital gains tax has now also been introduced for church capital gains tax.
Dr. Thomas Heinrichs, lawyer specializing in public law and mediator, Berlin. www.radrheinrichs.de
