Requirements for child benefit for eu citizens in germany?

Child care entitlement from a carer from the EU

Open borders and a free labor market – these are achievements of the European Union. But when will there be child benefit for EU citizens who work in Germany??

Child benefit for EU citizens?

From a tax perspective, the topic is regulated in the income tax law: Anyone who is resident or habitually resident in Germany is entitled to child benefit. Because that is the prerequisite for the so-called unlimited tax liability. If the children then do not live in Germany, but within the EU, there can in principle be child benefit for EU citizens.

However, this regulation obviously has its pitfalls. The Finanzgericht Münster (judgment of 19.09.2019, Az 5 K 3345/17) agreed with the family fund and denied child benefit to a Polish carer, although she worked regularly and over long periods in Germany.

The decided case: child benefit to EU citizens

The mother, a Polish nurse, worked in Germany for several years. She looked after various married couples and also individuals. In most cases, she was also housed directly with the clients, so she lived in the same household. In addition to a separate room and bathroom, the kitchen was also shared.

The mother’s child was not yet of legal age in the relevant period. However, it lived in Poland with his father. The family’s common center of life was still there.

The mother worked continuously for several years. She worked continuously in Germany for about three months and then returned to her family in Poland for two months. Then she continued her work in Germany. Since she was without a doubt in Germany for a long time and also worked, she applied for German child benefit at the responsible office for her child living in Poland.

Who is entitled to child benefit?

Child benefit requirements

Basically, according to § 62 Income Tax Act (EStG), the person is entitled to child benefit, the one Domiciled or habitually resident in Germany. As a result, you are automatically subject to unlimited income tax in accordance with §1 EStG.

The fact that the child lives in Poland is not an exclusion criterion. Because according to § 63 EStG you can for children who are within the EU Life, nevertheless receive child benefit in Germany under the conditions mentioned.

The reason for the court’s negative decision in this case was not the child’s nationality or place of residence. Rather, the child support office was of the opinion that the mother had no residence or habitual residence in Germany.

When do I live in Germany??

According to Section 8 of the Tax Code (AO), someone has a place of residence where he or she may have an apartment that indicates that he will keep and use the apartment. The court determined what that means based on two conditions.

Objectively and subjectively suitable for living

On the one hand, according to the financial judges, premises must be objectively suitable for long-term living. Circumstances must indicate that the apartment is being maintained and used. On the other hand, it must also be subjectively possible to be able to use the apartment at any time.

And from these two aspects, the court denied residence in the sense of tax law. Although the caregiver used the premises, she was not the owner of the apartment. The “apartment” was not available, especially during her regular and longer trips home to her family in Poland. Because during this time, another nurse lived in the premises.

Therefore, the finance judges ruled: There was no residence, because the rooms were not available at will.

What does ordinary stay mean??

In addition to the “place of residence”, German tax law also recognizes “habitual residence” in accordance with Section 9 of the Tax Code (AO). The special thing about this regulation is that you don’t have to maintain your own apartment. It is sufficient if you actually stay in Germany for a certain period of time.

On the one hand, this can be the case if the circumstances of your stay indicate that you are not only temporarily in a place, § 9 sentence 1 AO. At the same time, the AO defines that this is always the case if you spend more than six months together in Germany, Section 9 sentence 2 AO.

When staying for purely private reasons, vacation or medical treatment, one year is the limit.

Since the caregiver worked in Germany several times a year, each for about three consecutive months, there could be a habitual residence. In total, it was more than six months a year.

The Finanzgericht denied this. The regular breaks for family trips home to Poland would always have interrupted the six-month period. In addition, the home trips with about two months each would not only be short-term breaks.

In addition to the period, personal and family relationships could also be relevant, especially if the six-month period is only slightly exceeded or fallen short of.

But here, too, the judges were certain: the family was clearly centered on the family in Poland. The stays in Germany were for professional purposes only. An unlimited tax liability due to habitual residence had to be denied.

The result:

As a result, the court came to the conclusion that there was neither a prerequisite for tax "residence", nor an unlimited tax liability due to "habitual residence". As a legal consequence, the opinion of the family fund was confirmed and the claim denied child benefit for EU citizens in this case.