Under certain conditions, childcare costs can be taken into account as special expenses in accordance with Section 10 EStG. In particular, expenses for childcare services for a child under the age of 14 are deductible if
- the child belongs to the taxpayer's household,
- the beneficiary has received an invoice for the care expenses and
- does not pay the amount in cash, but by bank transfer to the service provider's account.
The special expenses deduction currently amounts to 80% of the childcare costs and a maximum of €4,800 per year (until the 2024 assessment period, it amounted to two thirds of the expenses and a maximum of €4,000 per year).
In its ruling of 11.5.2023, the BFH had already decided that the criterion of household affiliation is based on a constitutionally permissible standardization. In any case, the provision does not violate the tax exemption of the minimum subsistence level and the general principle of equality if the care expenses of the parent who has not taken the child into their household are covered by the allowance for care and education or training needs (so-called BEA allowance, which amounted to €1,320 in 2020 and is now €1,464 per year). The Federal Constitutional Court did not accept the constitutional complaint lodged against this ruling.
The BFH has confirmed its case law with the current BFH ruling on the 2018 year of dispute. It also ruled that it does not assume that Section 10 para. 1 no. 5 sentence 1 EStG is unconstitutional in this case constellation. The BFH only considers the provision to be constitutionally questionable insofar as the criterion of belonging to a household in individual cases can lead to a situation where childcare costs that exceed the BEA allowances and are actually borne by the parents and are otherwise deductible cannot be deducted as special expenses for either parent. However, the BFH denied the conviction of unconstitutionality required for a referral to the Federal Constitutional Court. There are still good reasons for basing the deductibility of childcare costs on the criterion of household affiliation, because the question of external childcare primarily arises for the caring parent in whose household the child lives.
Result: The BFH dismissed the plaintiff's appeal against the tax court ruling as unfounded. This exhausts all legal recourse, meaning that the plaintiff can only lodge a constitutional complaint in order to obtain the desired constitutional clarification.