Cities and municipalities should no longer rely on data from the 1960s when calculating the second home tax. This has been decided by the Federal Constitutional Court. Since then distortions could not be compensated by extrapolations.
The judges therefore gave two suits of apartment owners against the taxes of the Bavarian communities Oberstdorf and Sonthofen. The statutes there have to be revised, said the court in Karlsruhe.
Whether the decision affects other communities was not clear at first. According to estimates by the German Association of Towns and Municipalities, a three-digit number of municipalities levy a second-rate tax nationwide.
How many of them have identical statutes, the association wants to check now. However, he does not assume that most municipalities would have regulated their second home tax, said Deputy Chief Executive Uwe Zimmermann.
Problems with the design
Secondary taxes have existed since the early 1970s. Numbers must be owners or tenants who have their main residence elsewhere and in the community a second apartment.
The Federal Constitutional Court has basically approved the collection of second-home tax in 1983. However, the judges see problems again and again in the concrete design. It has already been decided that married couples commuting to work in another city should not be taxed. Students who are still registered at home with their parents have to pay.
The starting point of the new decision is the Karlsruhe judgment on property tax from April 2018. At that time, the First Senate had declared the underlying rules for the unitary valuation of land according to the circumstances of 1964 unconstitutional. The property tax must therefore be reformed by the end of the year.
more on the subject
On the same unconstitutional principle are based now bemandgelten taxes. Here, too, it could lead to significant distortions of value, it says in the decision - for example, because equipment standards or the connection of real estate have changed. The judges therefore object to a violation of the general principle of equality.
The graduated tariff in Oberstdorf also violates the requirement of taxation according to efficiency. People who can only afford a small rent would be burdened by this system above average, said the judges.
Both communities have until the end of March to revise their statutes. By then, the rules will be void.
(File number: 1 BvR 807/12 and others)