If spouses have been living apart for many years, they may nevertheless be jointly assessed for income tax (FG Münster, judgment of 22 February 2017 – 7 K 2441/15 E; appeal not admitted).
The case concerned a couple who had been married since 1991 and had a son born in the same year. In 2001, the wife moved out of the single-family home they had previously shared together and moved with the son into a rented apartment. A few years later, she moved into a condominium.
In 2012, the tax office initially granted the joint assessment as requested by the spouses. However, in the course of a tax audit, the tax office denied the joint assessment, arguing that the requirements were no longer met. An individual assessment was carried out retroactively, which the spouses challenged in court.
The spouses argued that they were separated only spatially, but not personally or emotionally. The wife (a physician working full-time) had moved out because the situation in the shared home had become difficult, as the claimant's mother, who required care, was also living there. Both spouses, however, regularly met in the evenings and on weekends, and continued to take trips, holidays, and attend Sunday church services together. There had never been any other partners. Furthermore, the spouses were planning to build a bungalow on a jointly acquired plot of land in order to live together there again.
The court ruled in favour of the claimants and gave the following reasons:
The overall picture – following a personal hearing of the spouses and the testimony of the son as a witness – indicates that the claimants were not permanently living apart.
In today's world, forms of spatially separated cohabitation are quite common ("living apart together"); it is therefore possible that the claimants maintained their personal and emotional community despite the spatial separation.
The fact that both spouses contributed to the costs for their son and to joint activities makes the claimants' position even more credible.
Moreover, the claimants intended to move back into a shared home together in the future.
It is also irrelevant that the claimants generally kept their finances separate, as this has become common practice even among spouses who live together in the same household.
Frequently asked questions
Frequently asked questions
Is joint tax assessment possible despite spouses living in separate residences?
Yes, joint assessment for income tax purposes is possible even if spouses live in physically separate residences. The decisive factor is that the personal and intellectual partnership between the spouses continues to exist and that they are not permanently separated within the meaning of § 26 EStG. The Fiscal Court of Münster confirmed this in its judgment of 22 February 2017 (Az. 7 K 2441/15 E).
Which criteria argue against permanent separation despite living apart?
Factors indicating that spouses are not permanently separated include regular joint activities such as outings, vacations, or weekend events, shared life planning (e.g., a planned reunion), and the absence of other partners. Joint contributions to costs for children and shared activities also support the assumption of an ongoing personal and economic partnership.
Does a separate household management between spouses jeopardize joint tax assessment?
No, separate cost management between spouses does not, in principle, preclude joint assessment. The Tax Court of Münster has held that separate cost management is now common even among spouses living together, and therefore does not contradict the continued existence of a marital union.
What does 'living apart together' mean in a tax law context?
'Living apart together' describes couples in a committed relationship who deliberately maintain separate residences. The FG Münster has recognized that this lifestyle is common today and that the personal and intellectual partnership can be sustained despite physical separation – with the consequence that joint tax assessment (Zusammenveranlagung) remains possible.
How is the existence of a marital community of life proven in case of dispute?
The tax court bases its decision on the overall picture of the circumstances. Relevant evidence includes the personal hearing of both spouses and witness testimony (e.g., from the children). Among the factors examined are the reasons for the spatial separation, the frequency of joint activities, shared financial commitments and concrete plans for the future of the marriage.