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German trade tax and constitution

Constitutional Problems arising from the differing Treatment of mixed Activities of Partnerships and Sole Proprietorships

André Grabowski

This book deals with the issue of the fundamental principle of equality of trade tax in connection with the so-called mixed activities of professionals. Only business enterprises are subject to trade tax. Professionals, whose work is based on a «higher calling» (lawyers etc.) are exempt from the same. The exemption of professionals came first into power on 01.04.1937 under the national socialistic regime.

Insofar as professionals have mixed activities and work within a partnership instead as a sole proprietor all activities are disqualified from trade tax exemption. This differing treatment and the constitutionality of the trade tax is questioned by a decision of referral in front of the Federal Constitutional Court. Having in mind that the tax exemption is more less based on national socialistic principles and that the last constitutional decision for trade tax refers to 1966 it is time for a decision by the Federal Constitutional Court. As no real objective grounds of justification exists the differing treatment at least should be recognized to be unconstitutional. However, it would be desirable that decision will be made that the trade tax as a whole is unconstitutional. The framework conditions for such a decision were never so ideal!