Support to Non-German Partner as extraordinary Expenses

Normally, you can deduct up to € 7,680 of support payments for maintenance made to a person to whom you owe support by law – pursuant to §33a EStG. But what if you are supporting a non-German person with whom you are living together without being married? Does this still qualify? The BFH answered this question on April 20, 2006 (re III R 23/05 [published on August 8, 2006]).

To whom do you owe support by law? Persons whom you owe support by law are:

• Husband or wife to each other, §1360 BGB,
• Separated married couples, not yet divorced, to each other, §1361 BGB,
• Divorced couples, each §§1569 ff. BGB,
• Persons in direct line of descent, to each other, §1601 BGB,
• Father to his child of an unmarried woman, §1615a BGB,
• Father to the unmarried mother of his child for pregnancy and post-delivery, §1615 l BGB.

Unless your relative falls under one these requirements these payments will not be deductible. If the person to support is not one of the above-mentioned persons, you do not owe him support by law. §33a I 2 EStG states that someone can still deduct support payments against income tax, who thereby forfeits a claim to local public welfare. Public welfare will generally be any kind of poverty support, especially Arbeitslosengeld II and Sozialgeld. Arbeitslosengeld I does not count since it is considered as an insurance benefit.

The question in the judgment above was whether the support paid for a foreigner in a life-partner relationship in order to prevent his deportation is deductible against income tax? In case at hand, the person to be deported was a partner in a same-sex civil-union marriage (“eingetragene Lebenspartnerschaft”). After losing an initial court battle over a foreigner’s residence permit, on account of joblessness, the solvent partner then guaranteed the necessary financial support. This gave rise to tax deduction question.