DR. JÖRG SCHRÖCK
The child benefit in Austria
CHILD IN AUSTRIA
Obligation to pay maintenance German parents
" Is the family allowance counted towards the child’s need for support??"
In Austria this is called child benefit "family allowance". The application for Familienbeihhilfe is to be brought to the residence office in Austria. entitlement to family allowance essentially have:
- Austrian citizens
- EU citizens and Swiss
- Persons legally residing in Austria on the basis of a residence permit
- Recognized refugees
Since the death of the Austrian Constitutional Court (short: VfGH) from 19.06.2002 – G7 / 02, B1285 / 00 is like in -> Germany the child benefit/ Half of family allowance for underage children to be counted towards child support. The family allowance is credited in Austria after a complicated -> formula. The reason for the child allowance is closely linked in both countries with the desired tax relief of the parents‘ income (to the tax child allowance and child allowance according to German law -> HERE . ). It is undisputed that the allowance for family allowances is taken into account if the dependent child in Austria taxed his income. But what if the parent responsible for the tax on his income taxed in Germany? If the dependent child lives in Austria and the parent responsible for the German incarceration in Germany usually comes under European legislation -> Austrian maintenance right for application. Now, the question arises as to whether, in accordance with Austrian legislation, the German parent liable for subsistence can cut its maintenance burden by the family allowance paid for the child in Austria. The highest court -> Case law in Austria denies the possibility of imputation of family allowance for dependent parents who are not subject to income tax in Austria. According to German maintenance law this is not the case: According to this, dependent parents who live in Germany can not do this for the -> child living in Germany paid child allowance for credit bring. Why this is so should be shown here.
Augoal: Dr. Schröck – law firm for family law
Signpost to "Crediting of German child benefits or Austrian family allowance"
I. Crediting of family allowance in Austria
Maintenance for children in Austria
with family allowance for the child
♦ Crediting example
Editor: Federal Chancellery – Federal Minister for Women, Media and Public Services, March 2008
Income of the breadwinner net € 2,500, – per month,
2 children aged 9 and 11, a wife who runs the household.
1. Maintenance calculation according to the percentage method:
Entitlement (33% of the net income of the dependent husband) less 4% per child = 33% – 8% = 25%
Maintenance of the woman: € 2,500, – × 25% = € 625,–
a) Child aged 9 years (18%) less for the wife (- 3%) less for the 11 year old child (- 2%) = 13%
Maintenance claim 9 year old child: € 2,500 × 13% = € 325,–
b) Child aged 11 (20%) less for wife (- 3%)
less for the 9-year-old child (- 1%) = 16%
Maintenance claim 11-year-old child: € 2.500, – × 16% = € 400,–
2. Consideration of tax relief & Crediting the family allowance
Annual maintenance for be >
Calculation of the tax relief by crediting the family allowance: For be > Unterhaltsabsetzbetrag for the first child results with € 25.50, for the second child with € 38.20, that gives thus € 63.70 × 12 = 764.40.
The maintenance calculation according to the formula:
€ 8700 × 5
———— + € 764.40 = € 8,014.40: 12 = € 667.87
The maintenance for both children amounts to approx. € 670,–,
Of this, the 11-year-old child accounts for 55%, that is approx. € 370,–
and 45% for the 9-year-old, that’s about € 300,–
The family allowance is thus reduced from € 400, – for the 11-year-old child to € 370, – and for the 9-year-old child from € 325, – to € 300, -. The family allowance reduced from € 400, – for the 11-year-old child to € 370, – and for the 9-year-old child from € 325, – to € 300,–
II. Crediting in the bilateral relationship
Family allowance for children
in the bilateral relationship between Germany and Austria
Legal questions regarding the maintenance right between Germany and Austria Separation, divorce and maintenance are complex and can not be overseen. Each individual case is subject to specific international and European legislation. You will learn more about this -> HERE.
♦ Child in Austria – debtor in Germany
The problem with the deduction of the family allowance is well known to us from numerous cases of German German fathers with children in Austria. However, a deduction of family allowance from child maintenance is only possible for those maintenance debtors who work in Austria taxable are. This Rspr. Of the Austrian Supreme Court, is based on the consideration that in the maintenance of children with separate household management care must be taken that the family benefit not (only) the compensation of care services, but, if necessary, the tax relief of the Should cause financial maintenance. According to the Supreme Court, the family allowance can only have a reducing effect on maintenance in those cases in which, in addition to serving the general purpose of relieving the caring parent, it also has to serve the tax relief of the taxable debtor. A credit of the family allowance is therefore only then and in so far as required, as a general tax relief is required. This applies not only to a parent who is liable for a dependent child tax in Austria and abroad, but also to a debtor who is not at all liable for taxation (see Supreme Court, cited above, 30. 1. 2003 – 2 0 b 86/02 i; v. 19. 12. 2002 – 6 Ob 108 / 02d).
District court for ZRS Vienna,
Resolution of 27.04.2012 – 44 R 182 / 12h
♦ child in Germany – dependent in Austria
In -> Germany this is seen differently. Here exists an explicit legal regulation for crediting the child allowance to the maintenance (§ 1612b BGB § 1612c BGB). A corresponding legal provision is obviously lacking in Austria (see Supreme Court, cf 30. 1. 2003 – 2 0b 86/02 i). To the problem has the BGH with decision >also for foreign cash-dependent parents accepted the reduction of the maintenance because of the child money paid in Germany.
(Quote) "It is true that, as well as the materials to the child maintenance law occupy (BT-Drucks. 13/7338 P. 29), the regulation of § 1612 b BGB on the children‘s money transfer entitlement according to the provisions of the Income Tax Act (§ 64 EStG) and the Federal Child Benefit Act ((§ However, the scheme is not limited to cases in which the child allowance is >taking into account Community law. Such an interpretation leads to the conclusion that the child allowance entitlement of the child-supportive parent (here: the Netherlands defendant) provided for by Paragraph 1612 (b) (1) of the Civil Code can also arise from foreign (here: Netherlands) or Community law."
annotation : Thus, in favor of Austrian cash-dependent parents, the German child allowance is counted, if in the other Member State (here: Austria) there is a basic crediting of child benefit (= family allowance)? Conversely, for parents living in Germany with children in Austria, no family allowance is credited to child support. This may seem unjust unequal treatment of German fathers to Austrian fathers of children in Austria. Possibly. This difference in treatment can be countered by not imposing the decision of the BGH (concerning Dutch law) on Austrian law. If Austrian law eliminates the link between tax liability and child allowance in the same Member State, it is precisely for Austrian maintenance debtors with children in Germany that there is no child allowance. Whether the BGH accepts this is not yet decided in the relationship between Germany and Austria. In any case, with European jurisprudence this (in) justice can not be eliminated. Thus, with case law of the European Court of Justice already clarified that a member state not to equal treatment of EU citizens is obliged to live in another Member State.
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