Home office of spouses or life partners

In addition to the general deduction limitations for a home office, ownership or rental relationships also play a role in the question of which costs are deductible in the case of spouses and civil partners.

With regard to the deduction of costs for a home office of spouses and civil partners as business expenses or income-related expenses, the legal interpretation of the tax authorities has changed as of 2018. Up to and including 2017, the expenses attributable to the study (including depreciation) for a property jointly owned by both partners were deductible regardless of the co-ownership share of the other spouse. This simplification no longer applies as of 2018, as the Federal Fiscal Court has since ruled on such cases. In doing so, it has required a differentiated assessment that distinguishes between property-oriented expenses (depreciation, interest, property tax, home insurance, etc.) and use-oriented expenses (energy costs, cleaning, renovation costs for the study, etc.).

This distinction is necessary because the property-related expenses - regardless of payment - can only be claimed for tax purposes by the owner himself. In the view of the Federal Fiscal Court, the property-related expenses are in fact at least also incurred in the interest of the owner when paid by a non-owner. For a property jointly owned by both partners, this means that the spouse or partner using the study can only claim the property-related expenses in proportion to his or her co-ownership share - even if he or she bears them exclusively alone. If the property is owned solely by the other spouse, the deduction of these expenses is even ruled out completely if the non-owner uses the study alone.

In contrast, the proportionate use-oriented costs attributable to the study are caused by the profession of the partner who uses the study. In the case of these expenses, it is primarily a question of who has actually borne them and not who is liable for them under civil law. Consequently, usage-based expenses are attributed to the person from whose account they were paid. If these expenses are paid from a bank account jointly owned by both spouses/life partners, the non-owner can claim the full amount of the expenses caused by his professional use for tax purposes and not only on a pro rata basis.

The differentiation between property-related and use-related expenses, with the resulting different tax consequences, is not limited to cases of ownership, but also applies to rented real estate. According to a decision of the highest tax authorities, the (cold) rent belongs to the property-related expenses. Thus, a tax-reducing consideration of the rent is only possible if the taxpayer using the study is also the tenant. In the case of a jointly rented apartment and use of the study by a spouse/life partner, only half of the (cold) rent attributable to the study can be taken into account for tax purposes.

In contrast, the use-oriented ancillary costs are attributable for tax purposes to the person who has borne them financially. If the use-oriented incidental expenses are transferred from a joint bank account of the spouses, the amount attributable to the study is deductible in full.