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A prerequisite for the deduction of expenses as special expenses is that the payer is economically burdened by the payment.
If, in cases of inheritance, legacies are to be fulfilled in the form of donation payments, e.g. to a charitable organization, the heir cannot , according to current case law, claim the donation payments as special expenses, since from the outset he or she only receives the assets encumbered with the legacy and, to this extent, is to be regarded as not being economically burdened.
The Federal Fiscal Court
has now clarified that this also regularly applies if a sum of money is donated together with the condition that a partial amount is forwarded for charitable purposes.
However, the Federal Fiscal Court also expressly pointed out in this decision that something different applies if the gift is a gift with a donation condition to the jointly taxed spouse (husband and wife). In the case of married couples, in the opinion of the court, it does not matter which spouse is economically burdened with a donation payment; in this respect, jointly assessed spouses are considered a “donor unit”.
In the case of a donation between spouses, a “double” deduction of the donated amount – for gift tax as a condition and for income tax as a special expense – is therefore possible.
