BFH makes it easier to take care allowance into account
(jur). If children look after their parents, they are entitled to a care allowance on inheritance tax after their death in the event of inheritance. The allowance must not be denied with the tax office's usual argument that children are legally obliged to care for or support their parents anyway, the Federal Finance Court (BFH) in Munich decided in a judgment published on Wednesday, July 5, 2017 (Az .: II R 37/15).
The inheritance tax and gift law provides for different allowances for inheritances. Spouses and registered partners have a tax-free allowance of EUR 500,000, grandchildren of EUR 200,000, parents and grandparents of EUR 100,000 and unrelated people have a tax-free allowance of only EUR 20,000.
Inheritance tax is payable on amounts exceeding these allowances. In addition to these allowances, a care allowance of up to 20,000 euros can also be claimed, provided that the deceased testator was cared for regularly before his death free of charge or for an insufficient wage.
In the case now decided, the plaintiff from Lower Saxony had also claimed the care allowance. For years she had cared for her mother in need of care at home at her own expense. The mother was dependent on long-term care for ten years and received care allowance of EUR 700 per month after care level III.
When the mother finally died, the daughter was considered a co-heiress. The legacy included a bank balance of around 785,000 euros.
The tax office then held out her hand to the daughter. You should pay 4,865 euros inheritance tax. The tax authorities refused to take the care allowance into account. The daughter was obliged to care and support for her mother anyway. The tax-free allowance can only be claimed for voluntary care.
The BFH now contradicted this in its judgment of May 10, 2017. A statutory maintenance obligation towards its parents does not preclude the granting of the care allowance. Nor does it follow from the duty of support and consideration between parents and children laid down in the Civil Code that the children are generally obliged to provide personal care. Since care services are usually provided within the family, especially between children and parents, the exemption regulation would be almost empty if this group of people was excluded, the Munich judges said.
Ultimately, the legislature wanted to tax the provision of care services. If long-term, intensive and comprehensive care services are provided - as in the specific case - the allowance can also be granted without individual proof of the expenses incurred. The care allowance can also be claimed if the testator is in need of care but was not entitled to maintenance in individual cases due to his own assets.
In order to be able to claim the tax-free allowance, the BFH had already decided on September 11, 2013 that heirs in principle must present the care services provided conclusively and make them credible (Az .: II R 37/12; JurAgentur announcement of November 20, 2013).
A need for help due to illness, disability or also due to old age is sufficient. In principle, people in need of help should be assumed for people over the age of 80. fle