FG Schleswig-Holstein, communication from September 30, 2024 on the judgment 5 K 71/23 from March 27, 2024 (nkr – BFH-Az.: III R 20/24)
In a judgment of March 27, 2024 (ref. 5 K 71/23), the 5th Senate of the Schleswig-Holstein Finance Court decided that an analogous application of Section 32 Paragraph 4 Sentence 1 No. 2b EStG to cases in which the The period between two training periods is 16 months due to the corona pandemic, but is excluded due to the lack of an unplanned gap in the regulations. If Section 32 Paragraph 4 Sentence 1 No. 2c EStG would apply in accordance with case law to interrupt training due to illness and maternity leave because the corona pandemic could also be viewed as an objective reason for interrupting training, this would in any case be lacking in the present case The child’s willingness to study.
The plaintiff’s son had been training to become a hotel specialist since August 1, 2019. At the request of the training company, this training relationship was terminated early with a termination agreement on April 30, 2021. The plaintiff stated that, in view of the corona-related contact restrictions, it made no sense for his son to look for a training company in the same industry that would have continued the training following the termination agreement. In his opinion, there would not have been a real chance of continuing training until August 1, 2022. In this respect, the plaintiff’s son was forced to look for a bridge. He registered as a job seeker for a short time and then took on a temporary job at a hotel in Switzerland. In January 2022 he returned to Germany because his residence permit was expiring. On August 1, 2022, he began training in a roofing company. The family fund canceled the determination of child benefit and at the same time demanded child benefit back for the period from May 2021.
The lawsuit against this was unsuccessful. The requirements for consideration pursuant to Section 32 (4) EStG were not met. An analogous application of Section 32 Paragraph 4 Sentence 1 No. 2b EStG to cases in which the period between two training periods is 16 months due to the corona pandemic is ruled out due to the lack of an unplanned gap in the regulations. The four-month period clearly stipulated in the law precludes an unplanned gap in the regulations. If training could not be continued as a result of the corona pandemic and therefore for objective reasons, there may be a claim to child benefit in accordance with Section 32 Paragraph 4 Sentence 1 No. 2c EStG in accordance with case law on interruption of training due to illness and maternity leave be. In the case of the dispute, the plaintiff’s son accepted the termination agreement of his own accord. In view of the non-cancellability of his training contract, there was in principle the possibility of continuing the training. In addition, the willingness to train within the meaning of Section 32 Paragraph 4 Sentence 1 No. 2c EStG is not proven if a 21-year-old who interrupted his training as a hotel specialist of his own decision during the Corona pandemic does not register with the employment agency He is not looking for a training place, but is only registered as a job seeker and he is not seriously trying to get a training place because he sees no real chances of continuing his training due to the corona pandemic.
An appeal was lodged against the judgment; the proceedings are pending at the Federal Finance Court under case number III R 20/24.
Source: Schleswig-Holstein Finance Court, Newsletter II/2024
