The 2nd Senate of the Cologne Fiscal Court has dismissed the complaints against the allocation of the tax identification number (tax ID) in seven test cases. In the decisions of 7 July 2010 (including 2 K 3093/08, 2 K 3986/08, 2 K 3265/08), which have now been published, the court expressed considerable doubts about the constitutionality of the tax ID. However, these doubts did not lead to a referral to the Federal Constitutional Court in Karlsruhe, because a referral to the Federal Constitutional Court is only possible if a court is completely convinced of the unconstitutionality of a norm. With regard to the allocation of the tax ID, the Senate could not come to the conclusion that the individual citizen's right to informational self-determination outweighs the interest of the general public in uniform taxation.
Behind the test cases are more than 170 lawsuits filed by citizens who claim that the allocation of the tax ID is unconstitutional before the Cologne Fiscal Court, which has sole jurisdiction in Germany. According to the plaintiffs, the nationwide tax ID paves the way for the "transparent citizen". This is also shown by the fact that even babies receive a tax ID in the mail from the Federal Central Tax Office (BZSt) immediately after birth. Furthermore, the "numbering" of people as "personal identifiers" is rejected for religious reasons.
The Senate bases its constitutional doubts, among other things, on the fact that the tax ID would ultimately enable all citizens residing in the Federal Republic of Germany to be recorded centrally by the state. This would make it possible to create a large central database by expanding the data to be stored or by networking various data pools. This could also result in the danger of creating personality profiles in the future. It was also questionable whether, for the purpose of uniform taxation, it was actually necessary to allocate the tax ID "across the board" and to store data "across the board", regardless of whether the persons concerned had already fulfilled a taxable event. In this respect, there is in a way a "data retention".
Insofar as individual plaintiffs have also asserted a violation of freedom of religion under Article 4(1) of the Basic Law (e.g. in the proceedings 2 K 3093/08, 2 K 3986/08), the Senate is of the opinion that there is already no encroachment on the scope of protection. The tax ID was merely an internal classification feature of the authorities. The plaintiffs were not denied their Christian name. It would be retained and used as before.
The 2nd Senate allowed an appeal against the rulings at the Federal Fiscal Court in Munich.
The tax ID has been sent to all residents by the BZSt in Bonn since 1 August 2008 (§ 139b AO). Germany is thus following the example of many neighbours in the European Union. The introduction of the tax ID is intended to simplify the taxation procedure and reduce bureaucracy. For this purpose, the competent BZSt receives electronically from all registration authorities the data stored in the population register. In addition, data relevant to wage tax, such as religious affiliation, health insurance contributions, number of wage tax cards and children are stored with their tax ID (§ 39e EStG). The tax ID has eleven digits from which no conclusions can be drawn about the taxpayer.
Source: Press release of the FG Cologne of 09 September 2010
Goldberg Attorneys at Law 2010
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
