"Two steps forward, one step back. As with the commuter allowance, the Federal Constitutional Court (Az. 2 BvL 13/09) has found that the rules on the home office violate the German Constitution – and has struck down the law," begins the Focus Money article from August 2010 on the home office. Focus Money discusses the consequences with Anke Büker, Steuerberaterin (German Certified Tax Advisor) and partner in our group of companies, who is quoted in the article as follows: "Taxpayers are on the safe side if the entire tax assessment is issued subject to review. Taxpayers can now submit the costs for their home office and apply for an amendment. If the tax assessment contains a provisional note regarding the home office, the assessment will automatically be amended in their favour. If the assessment was kept open by way of an appeal, the tax office will amend it accordingly." Have you filed an appeal? Read the attached article to learn more. And/or, if we can be of assistance, please feel free to contact us. We will file an appeal on your behalf and otherwise ensure that you can claim your home office in the most favourable way possible. [wpfilebase tag=file id=22 /]
Frequently asked questions
Frequently asked questions
Why did the Federal Constitutional Court overturn the rules on the home office?
In its decision of 6 July 2010 (Az. 2 BvL 13/09), the Federal Constitutional Court ruled that the restrictions on home office deductions in place since 2007 were unconstitutional. The rules violated the principle of equal treatment because taxpayers who had no other workplace available were denied the deduction of their expenses. As a result, the legislature was required to enact a constitutionally compliant revision with retroactive effect.
How does a reservation of subsequent review in the tax assessment affect the home office deduction?
If the entire tax assessment is issued subject to subsequent review (§ 164 AO), it can be amended in the taxpayer's favor at any time. Expenses for a home office can therefore be claimed retroactively by requesting an amendment of the assessment. Procedurally, the taxpayer is on the safe side in this case.
What does a provisional notice regarding the home office mean?
If the tax assessment contains a provisional notice (§ 165 AO) concerning the home office, the assessment will be automatically amended in the taxpayer's favor following a constitutional ruling. A separate application is not required, as the tax office implements the adjustment ex officio.
What happens to tax assessments that have been challenged by an appeal?
If the tax assessment was kept open by an appeal, it has not yet become final and binding. Following the Constitutional Court's decision, the tax office amends the assessment in favor of the taxpayer, allowing the home office expenses to be subsequently taken into account.
What should taxpayers do if their assessment is final?
If the tax assessment is final and contains neither a reservation of review (Vorbehalt der Nachprüfung) nor a provisional notice (Vorläufigkeitsvermerk), and no appeal was filed, a subsequent recognition of home office costs is generally no longer possible. It is therefore advisable to keep future assessments open on disputed legal questions by filing a timely appeal.