The Lower Saxony Tax Court has held that the exclusion of partners of a registered partnership by the application of the regulations is unconstitutional on the spouse splitting (FG Lower Saxony, Order of 11.9.2010 - 10 V 309/10).
The case before the FG:
The applicant asked the tax office with her partner to be joint assessment for income tax. The Tax Office rejected this by reference from the fact that the legislature has limited the right to joint assessment specifically to spouses. At the same time rejected the Tax Office from the applicant's request for a stay of execution of the contested income tax assessment.
The next FG:
Because of constitutional protection of marriage, the legislature is not in principle but denied this to the detriment of other life forms. , The promotion of marriage but it is associated with disadvantage of other life forms, although these are similar to marriage, justifies the mere reference not to the protection requirement of marriage such modulation. Although the BFH in the past, the tax treatment of registered civil partnerships in the investment of choice with regard to the promotion of marriage and family by the Basic Law has considered justified. Given the decision of the Constitutional Court v. 07.21.2010 (ref. 1 BvR 611/07 and 1 BvR 2464/07) for the unequal treatment of marriage and registered partnership in the inheritance tax and gift law, this Court can no longer be maintained. It may be left in whether the ability to justify the marriage to the civil partnership to father children the splitting of common tariff for the benefit of both spouses. Current law makes namely the privileging of marriage is not dependent on the presence of joint children, but just do not differentiate between childless marriages and those in which children are formed.
Note
The Tax Court allowed the appeal to the BFH. A reference number of the BFH is currently not yet available. Regard the question of whether the refusal of the joint assessment of "splitting" and for partnerships with the principle of equality is compatible with, the Federal Constitutional Court already corresponding constitutional appeals pending (Ref. 2 BvR 909/06 and 288/07 2BvR).
Source: FG Niedersachsen online
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