Review of double taxation of public pensions | Manage

The comparison of the relative share of pension accrual points earned from taxed contributions (Section 63(2) SGB VI) and the statutory tax-exempt share of the pension does not represent a suitable method for calculating possible double taxation.

Background: Evidence of double taxation of an annuity

The former employee A turned 64 in April 2018 and since August 2018 has received a state pension from the statutory pension insurance.

The FA taxed the pension for 2019 so that it deducted the annual amount (EUR 31,944) according to Section 22 No. 1 Section 3 Letter a Double letter. aa § 4 EStG tax-free part of the pension (7,667 EUR = 24%) and the fixed amount for income-related expenses (102 EUR) deducted.

With his AdV application (against the income tax notice for 2019 and the advance payment notice for the following years) A alleged double taxation of his pension. 43.17% of the pension accrual points she earned were based on taxed contributions. This value exceeds the statutory tax exemption of 24% of their pension contributions by 19.17%. FG rejected the application.

Decision: BFH sticks to its previous calculation method

Like the lower tax court, the BFH also rejected serious doubts about the legality of the contested decisions. The complaint was dismissed as unfounded.

Recognized principles of jurisprudence

According to BFH jurisprudence, this is an unacceptable double taxation if the sum of the expected tax-free pension contribution at least just as high is like the sum of out taxed income incurred old-age pension expenses (no later than BFH v. 19 May 2021, XR 33/19, BFH/NV 2021, 992, margin no. 22, and XR 20/19, BFH/NV 2021, 980, margin no. 48).

The sum of the tax-free accrued (probable) pension payments must be calculated so that the tax-free part of the pension (Section 22 no. 1 § 3 Litra a Dobbelbogstav aa § 4 EStG) with the average statistically expected life expectancy of the taxpayer according to the time of the multiplication with the last available mortality table at the time of retirement (BFH in BFH/NV 2021, 992, margin no. 22, and in BFH/NV 2021, 980, margin no. 48). On this basis, A’s legal objections do not go through.

nominal value principle

BFH confirmed that there is no objection, either real or nominal increases in value of the pension payments that must be booked for tax purposes the first time (BFH in BFH/NV 2021, 992, margin no. 24 et seq. and 29). This applies not only to the final design of the subsequent taxation, but also to the transitional regulation (BVerfG of 30 September 2015, 2 BvR 1066/10, HFR 2016, 72, margin no. 56).

No other calculation method

The one that A alternative calculation double taxation based on a comparison of the relative share of earnings from taxed contributions pension salary points (§ 63 Abs. 2 SGB VI) and the statutory tax exemption part of the pension are not convincing.

The fact that deductions for special expenses according to § 10, subsection 1, no. 2, letter a EStG, is solely based on the contributions, but not on the conversion value according to section 63, subsection 2, SGB VI, speaks against this. The dependence of the pension right on the size of the payments is not fundamentally called into question when calculating the earning points (the individual’s earnings in relation to the average income).

No purely static ratio calculation

The calculation of A assumes that each pension payment is divided into a taxable and a tax-free part and is therefore taxed twice to the extent that the tax-free part remains below that of the pension accrual points earned by taxed contributions (according to calculations of A in her case 24% : 43.17%). It does not take into account that the concept of post-taxation basically qualifies all pension contributions in the payment phase as taxable. The proportional tax exemption in the transition phase only takes into account the fact that only a limited amount could be claimed in special expenditure deductions.

In addition, it would be wrong to determine a possible double taxation based on a purely static ratio calculation. This calculation assumes the statistically probable retirement period not taken into account and therefore cannot make any forecast as to whether the size of the tax-free pension payments, which depend on the term, can compensate for the tax-bearing contributions.

Marginal tax burden irrelevant

Contrary to A’s view, the respective “marginal tax burden” in the payment and payment phases should not be taken into account in the comparison and forecast calculation. This view cannot be derived from previous case law.

employer contribution

Finally, it is clarified that employer contributions must not be included in the comparison and forecast calculation. This follows from the fact that these payments are made tax-free from the point of view of the pensionable taxpayer according to § 3 no. 62 EStG. Double taxation cannot therefore arise based on this (BFH of 6 April 2016, XR 2/15, BStBl II 2016, 733, margin no. 55).

Longer life expectancy for women

A objects that women’s statistically higher life expectancy leads to a higher tax burden and justifies unequal treatment. However, this consideration ignores an important differentiation criterion, namely the statistically assessed period of the pension right.

Note: Adherence to the previous calculation method

The BFH confirms its in the basic judgments of 19 May 2021, XR 33/19 (BFH/NV 2021, 992, and XR 20/19 (BFH/NV 2021, 980)) In addition, the BFH notes that in the event of a dispute can be left open as to whether A is responsible for providing interim judicial protection required for challenges to the constitutionality of a norm particular legitimate interest (BFH of 15 June 2016, II B 91/15, BStBl II 2016, 846, margin no. 10). Because there is already no serious doubt about the legality of the contested decisions.

BFH, decision of 24 August 2021, XB 53/21 (AdV), published on 21 October 2021

All BFH decisions published on 21 October 2021 with brief comments

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