Düsseldorf, 12. Dezember 2019
In recent months, the number of cases in which associations in Germany have been deprived of their predominantly long-recognised non-profit status by tax offices has increased.
One of the victims of this repressive politics is the 1947 created Federal association of the pursued ones of the Nazi regime – federation of the anti-fascists VVN-BdA, whose non-profit character is recognized for many years. The decision for the fiscal withdrawal of the non-profit character took place in November 2019 by the citizens of Berlin tax office for corporations. The VVN BdA managing director Thomas Willms explained for this that the tax office requires in addition for 2016 and 2017 a tax arrears payment in five digit height, which endangers the existence of the association.
The only reason given by the Tax Office Berlin is the mention of the VVN-BdA in the appendix of the report of the Bavarian Office for the Protection of the Constitution (domestic inteligence) of 2016 in the group of left-wing extremist organisations. In the report itself, the VVN-BdA is only described as “influenced by left-wing extremism”.
Legally and politically unacceptable
Already according to the wording of the law, the withdrawal of non-profit status should not have taken place. According to § 51 of the Fiscal Code, the denial of non-profit status can only be considered if an association is listed as an extremist organisation in the constitutional protection report of a federal state. However, the VVN-BdA is only mentioned in the Bavarian report as “influenced by left-wing extremism”. Only in the appendix is it assigned to the group of left-wing extremist organisations.
This legally not unimportant difference is overlooked by the Berlin Tax Office for Corporations. In addition, the tax office should not have accepted the claims and assessments of the Bavarian Office for the Protection of the Constitution without an audit. It would have had to consider with its decision that both the Federal Office for the Protection of the Constitution and all other state offices for the Protection of the Constitution have not mentioned the VVN in their reports for many years. It should have taken into account that § 52 para. 2 of the AO expressly mentions the promotion of remembrance of victims of persecution and the promotion of aid for victims of racist persecution as grounds for recognition of charitable status. This is precisely the core concern of the VVN-BdA.
Finally, it should have taken into account the fact that in July 2019 the German Bundestag decided by a large majority, at the request of the governing coalition, to pay greater tribute to the resistance fighters against Nazism. The VVN has played a pioneering role in this task for decades. It conducts many of its educational events together with the trade unions. For this it has been repeatedly honoured, most recently in 2017 by the City of Frankfurt on the occasion of the 70th anniversary of the founding of the VVN-BdA.
Violation of the rule against arbitrariness and discrimination
With its decision, the tax office also violates the ban on arbitrariness prescribed by the German Constitution and the European Convention on Human Rights, and it violates the freedom of association guaranteed under constitutional and European law by making it more difficult for the VVN-BdA to carry out its activities by depriving it of its financial resources. The educational work mentioned above is made almost impossible by the withdrawal of the tax privilege.
The catalogue of tax-privileged activities in § 52 (2) AO is systematically questionable and, due to its indeterminacy, opens the door to arbitrary decisions. Its content also does not take into account the political necessity of promoting civil society to strengthen democracy. The new tax code must create the lack of legal certainty that does not leave it to the local tax official to decide how much democracy he considers necessary.
It cannot be a coincidence that, at the same time, the state is attempting to deprive active organisations which fight against racism, against neo-liberal policies and for social objectives, for environmental protection or even through democratic but also critical educational work of the economic basis for their activities. Its non-profit status was already officially recognised years ago for the promotion of popular education (attac, Campact and DemoZ). The attempt to deprive Deutsche Umwelthilfe (German Environment Aid) of its right to take legal action for consumer protection failed before the Federal Supreme Court. The CDU has decided undauntedly to have its non-profit status reviewed and to no longer have it supported with federal funds.
Also the Federal Minister of Finance had to admit quickly that the prohibition proposed by its Ministry for non-profit organizations to express themselves to political topics and the policy of the parties is not worthy of a democracy. Unfortunately, the lack of understanding of democracy in his ministry seems to have gained a dangerous foothold in various tax offices.
Antifascist enlightenment indispensable
ELDH Secretary General Thomas Schmidt explains: “The alleged legal justification for the withdrawal of the tax privilege can only be seen as a pretext. Such a policy does considerable damage to the democratic community. In a time, in which organizations like the AfD undermine the democratic and social consensus, the value of anti-fascist enlightenment and the appropriate political education work cannot be estimated at all highly enough.
The ELDH requests the responsible authorities in the federation and in the Lands to prevent by appropriate uniform defaults that the non-profit right is abused for political arbitrary decisions.
Decisions already taken to withdraw non-profit status must be reversed retroactively so that the financial damage already incurred is limited. In addition to the VVN, this also applies to attac, Campact and DemoZ.
The ELDH furthermore demands:
- § 51 para. 3 sentence, 2 AO is to be deleted, according to which the tax offices can assume that an association, which is mentioned in a report on the protection of the constitution (domestic intelligence report) as an extremist organisation, is not of public utility”.
The catalogue in § 52 para. 2 AO shall be supplemented by the following activities, among others:
- Promotion of human rights and democracy
- Promotion of historical research on the development of human rights and democracy in Europe