More and more employees are sent abroad by their employer for a certain period of time to work at a local business location. For secondments that extend over years, the employee’s family usually travels with them.
On 11.03.2020 (Az. 3 K 1554/19) the Finance Court of Hessen considered the question of if underage children or children, which are still in education are still entitled to child benefit in Germany.
It decided that only an occasional stay during irregularly successive short periods for vacation purposes does not make a dwelling the domicile in the sense of § 8 AO.
An employee was posted to China for three years. His wife and children followed him and spent most of the year in China. The wife and children spent the summer vacations and sometimes a few weeks in spring in Germany. A house owned by a limited liability company in Hessen was used for residential purposes and the husband was the managing director. The house was not to be used for any other purpose. In a lease agreement, it was regulated that the husband (as the managing director) pays rent only for the time of the actual use. At the end of the assignment, the apartment was to be used again permanently and without restriction by the family.
After appealing unsuccessfully, the wife’s lawsuit was then successful at the Finance Court of Hessen. According to the Finance Court of Hessen, in the case of an employee transferred abroad, the retention of a furnished apartment in Germany would justify a presumption for a continuing intention to use the apartment independent of the extent of the actual use.
The actual power of disposal does not require that rent is paid all year round. Subletting an apartment excludes the possibility of the family regularly using the apartment in the future. In case of dispute, the family has permanent access to the apartment, which is the reason for the existence of an apartment in Germany.
The Finance Court of Hessen affirmed that the house was indeed a domestic domicile and consequently affirmed the claim for child benefit.