Order of 12 December 1957

Reasons:

I.

1

For the tax years 1949 to 1952, the taxes of the complainants, a master butcher and his wife, were jointly assessed in the ... Tax Office’s tax assessments of 6 October 1953. All tax assessments became final and binding before 21 February 1957.

2

By a brief dated 19 November 1957, the complainants lodged a constitutional complaint against § 26(5) of the Income Tax Act (Einkommensteuergesetz – EStG) in the version of 13 November 1957 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 1793, hereinafter: Income Tax Act 1957), against § 26 of the Income Tax Act in the versions applicable between 1949 and 1954 and against their joint tax assessment for the years 1949 to 1952. In their view, § 26 of the Income Tax Act and the tax assessments based on this provision violate Art. 6(1) of the Basic Law (Grundgesetz – GG) for the reasons stated in the Order of the Federal Constitutional Court of 17 January 1957 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 6, 55). They contend that § 26(5) of the Income Tax Act 1957 prevents them from asserting that the tax assessments are void and therefore also violates Art. 6(1) of the Basic Law as well as Art. 79(3) of the Basic Law.

II.

3

The constitutional complaint is dismissed pursuant to § 91a(2) first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) [old version].

4

1. Insofar as the constitutional complaint is directed against § 26(5) of the Income Tax Act 1957, the constitutional complaint is manifestly unfounded. This provision was inserted into the Income Tax Act by Art. 1 of the Act Amending Tax Law Provisions of 26 July 1957 (Gesetz zur Änderung steuerrechtlicher Vorschriften vom 26. Juli 1957, BGBl I p. 848). Therefore, the challenged provision is part of the transitional legal framework governing the income tax assessment of spouses, the enactment of which became necessary after § 26 of the Income Tax Act in the version of 17 February 1952 (Einkommensteuergesetz 1951 – EStG 1951, hereinafter: Income Tax Act 1951) had been voided by the Federal Constitutional Court (BVerfGE 6, 55). Pursuant to § 26(5) of the Income Tax Act 1957, taxpayers cannot demand corrections to tax assessments that have become final and binding before 21 February 1957 based on the argument that § 26 of the Income Tax Act in the versions applicable before 21 February 1957 is void. In this respect, the provision corresponds to the principle established in § 79(2) first sentence of the Federal Constitutional Court Act, according to which final and binding decisions based on a legal provision which was voided by the Federal Constitutional Court shall remain unaffected.

5

Two principles necessarily conflict in the statutory regulation of the question of what effects voiding a legal provision has on final and binding acts of public authorities based on the subsequently voided legal provision: the requirement of legal certainty, which includes the continued legal validity of final and binding decisions (BVerfGE 2, 380 [403]), and the requirement of justice in the individual case. The legislator was already faced with the question of which of these principles should be given preference when deliberating on the Federal Constitutional Court Act (cf. references in BVerfGE 2, 380 [404]). In § 79(2) first sentence of the Federal Constitutional Court Act – as well as later on in § 26(5) of the Income Tax Act 1957 – the legislator chose to prioritise legal certainty. In doing so, the legislator did not violate the Basic Law: both the principle of legal certainty and the principle of justice in individual cases have constitutional status; legal certainty, like justice, is an essential component of the rule of law, one of the guiding principles of the Basic Law (Order of 24 July 1957 - 1 BvL 23/52 -). Therefore, the legislator was free to decide which of the two principles it wanted to prioritise. Its decision in favour of legal certainty is therefore compatible with the Basic Law, even if, as a result, the enforcement of a fundamental right – in this case, the fundamental right under Art. 6(1) of the Basic Law – is no longer possible in proceedings that have been concluded with final and binding effect.

6

With regard to the concerns of the Federal Fiscal Court (Judgment of 31 October 1957 - VI 33/56 U - ), it is to be noted that a provision such as the one contained in § 79(2) first sentence of the Federal Constitutional Court Act and § 26(5) of the Income Tax Act 1957 does not violate Art. 3(1) of the Basic Law. If the Federal Constitutional Court declares a law to be void, this decision will – in view of the provision of § 79(2) first sentence of the Federal Constitutional Court Act – generally have no effect on a large number of proceedings that have been concluded with final and binding effect, but will have legal effects on all pending proceedings. Accordingly, it inevitably follows from the decision in favour of legal certainty made in § 26(5) of the Income Tax Act 1957 that taxpayers are treated differently depending on whether or not their tax assessments became final and binding before 21 February 1957. Even if the different tax burden on the two groups of taxpayers does not fully satisfy the requirement of justice in individual cases, the unequal treatment is justified by the requirement of legal certainty and therefore not objectionable under constitutional law, including Art. 3(1) of the Basic Law. Under no circumstances did the particularly large number of tax assessments already completed require the legislator, from a constitutional point of view, to regulate the effects resulting from the declaration that § 26 of the Income Tax Act 1951 was void on proceedings that had been concluded with final and binding effect in deviation from the principle established in § 79(2) first sentence of the Federal Constitutional Court Act. From the point of view of legal certainty, it is precisely the large number of tax assessments that have already become final and binding that justifies the provision made in § 26(5) of the Income Tax Act [1957].

7

2. The constitutional complaint is inadmissible insofar as the complainants assert the voidness of § 26 of the Income Tax Act in the versions applicable between 1949 and 1954. A constitutional complaint challenging a law is only admissible if the complainants’ rights are directly affected by the law and not just by an administrative implementation measure. However, the statutory provision challenged here requires a specific implementation measure on part of the executive in the form of a tax assessment (BVerfGE 1, 97 [101 ff.]).

8

3. The constitutional complaint is time-barred insofar as it is directed against individual tax assessments. All tax assessments became final and binding before 21 February 1957. Therefore, the one-month time limit established by § 93(1) first sentence of the Federal Constitutional Court Act had already expired at the time when the Federal Constitutional Court received the constitutional complaint on 22 November 1957.

9

As the constitutional complaint was therefore manifestly inadmissible in part and manifestly unfounded in part, the decision is not expected to clarify a constitutional issue, nor will the complainants suffer any severe and unavoidable disadvantage as a result of the Court’s refusal to rule on the merits.