«The abolition of the marriage penalty» - ever since the referendum of 28 February 2016, this term has been universally known. Ist popularity has not declined since the lost referendum and has been on
everyone's lips again since 10 April 2019.
The reason for this is the very first approval of a voting complaint by the Federal Supreme Court. In this article we pursue the question of whether the Name «marriage penalty» is at all justified (marriage should not actually be a penalty) and what exactly the goal of the 2016 initiative was or is.
A topic for more than 30 years
Already in 1984, the highest judicial authority in this country attested that there is inequality in the taxation of married couples in relation to unmarried persons and referred to this inequality as a «marriage penalty». However, under Art. 190 of the Federal Constitution, the Lausanne judges have no competence to repeal a provision of federal law, and so the situation criticised by the Federal Supreme Court has remained in force to this day. After more than 30 years, the Christian Democratic People's Party of Switzerland (CVP) dared to launch a parliamentary initiative seeking the abolition of this marriage penalty. But what exactly does the term «marriage penalty» mean?
The term «marriage penalty» was established by politicians to draw attention to the fact that married couples and registered partners are at a disadvantage compared to cohabiting partnerships. However, strictly spea-king, there is no marriage penalty. There is no direct punishment or discrimination against the spouses just because they entered into marriage. The term refers to two things in particular. On the one hand it is criti-cised that the AHV pensions for married couples together may only amount to 150% (ceiling) and thus result in less pension credit for a married couple in contrast to an unmarried couple.
On the other hand, in the area of taxes, incomes are aggregated in a legally unequal manner. Based on Art. 9 of the Federal Act on Direct Federal Tax (DBG), this aggregation has a negative (increasing) effect on the
progression and thus on the resulting proportional tax amount (higher than before marriage). This mainly affects married couples with a double income and a higher tax burden. While the double-earner deduction for married couples introduced for this reason in 2008 reduces unequal treatment, it does not make it disappear completely.
The CVP launches the initiative
On 5 November 2012, the CVP submitted the aforementioned initiative «For marriage and family - against the marriage penalty» to the Federal Chancellery. The main concern of the initiative was the taxation of spouses as an economic community. In addition, married couples should also be treated in the same way as cohabiting couples when determining their AHV pensions (and thus benefit from two full individual pensions). The CVP lived up to ist party name with the third and final demand of the initiative: the definition of marriage as a «long-term relationship between man and woman» in the Federal Constitution. Such a standardisation of marriage as a life partnership between man and woman currently corresponds to the general practice in Switzerland, but at the same time distances us even further from opening up marriage to homo-sexual couples.
Within the Federal Council's recommendations in the voting booklet and the media releases, the Federal Council and Parliament stated their rejection of the bill with the following arguments: (1) enough measures had already been taken to mitigate the unequal tax treatment with various deductions; (2) only 80'000 double-income married couples with a higher income (income of CHF 80,000 or more without children and CHF 120'000 or more with children) were affected by the unequal treatment; (3) Within the framework of the pension restriction to 150% for married couples (ceiling), married couples would nevertheless benefit over their entire lifetime from a wide variety of advantages such as widow's and widower's pensions, the widow's supplement for AHV and IV, as well as reduced contributions for accident insurance, military insurance and
occupational pensions. If married couples were now awarded a full pension, this would result in an imbalance to the detriment of cohabiting couples - not to forget the additional AHV burden of CHF 2 billion.
Overall, the Federal Council approved the tax aspect of the initiative text, but felt that the planned changes in social security legislation were obsolete. The Parliament also identified itself with the need for tax adjustment in the taxation of married couples, which has been pending for 30 years. However, the main point of the Parliament's displeasure was another: the standardisation of marriage as a life partnership between man and woman in the Federal Constitution was taking it too far. According to parliamentarians, such a provision in the Federal Constitution would push the currently discussed opening of marriage to same-sex couples even further into the future. This adherence to the no longer contemporary concept of marriage was rejected. The Federal Assembly felt the same way with regard to the formulation of the taxation of married couples as an economic community: Individual taxation as a possible solution for unequal treatment would thereby be brushed off the table.
Finally, the key date was 28 February 2016. With 50.8 % of the votes, the bill was rejected by the people, but approved by the majority of the cantons. At the subsequent press conference of the Federal Council, the latter declared the following: The obligation of the Confederation to abolish the legally unequal taxation of married couples against cohabiting couples, which was declared so by the Federal Supreme Court 30 years ago, continues to be an important item on the agenda and remains to be resolved.
A severe calculation error
In spring 2018, on the basis of the media conference that took place after the vote, the Federal Council decided to amend the taxation of married couples and thus (partially) abolish the so-called «marriage penalty» in its message of 21 March 2018. An annual loss of CHF 1.15 billion would be the consequence of the abolition. The much-discussed individual taxation was not included in the message due to delimitation difficulties, but a double calculation method was put forward. In a first step, this method proceeds as before by adding up the income of the spouses. In a second step, the ratios are calculated in the same way as for cohabiting couples. The more favourable variant is then issued to the spouses as an assessment.
However, this typically Swiss legislative process was suddenly shaken by bad news from the Federal Council on 15 June 2018. The Federal Council informed the electorate that an error had crept into the Federal Council's Information provided in the voting booklet of 28 February 2016. Not 80,000 double-income marriages (as mentioned in the voting booklet), but 454,000 marriages are affected by the current legally unequal taxation. In the calculations of the voting booklet, two-income couples with children were forgotten. The Federal Tax Administration, acting on behalf of the Federal Council, had made a serious miscalculation. Thereupon, Federal Councillor Ueli Maurer initiated an external investigation.
The result of this external investigation identifies a calculation error as the cause and reveals a questionable, even sobering picture. The Swiss Federal Tax Administration's calculation error is not an isolated case - the authority generally receives too little data. According to the expert, the Federal Tax Administration is not in a position to fully fulfil its political mandate with the data available today.
On the basis of these findings and the fact that the vote was extremely close, the CVP lodged a voting complaint/appeal against the vote with the Federal Supreme Court in June 2018. This is not the first time that the Judges in Lausanne have had to assess political concerns as a legal authority. When it voted on CTR II, it already had to decide on the consequences of incorrect projections of tax losses. Predictions - which by their very nature are already subject to uncertainty - have so far mainly led to the denial of the Repetition of the vote in the verdict of the highest Swiss court.
The bar for the approval of a repetition of the vote is extremely high. Declarations of invalidity require that the defects discovered are of a considerable nature and may have actually affected the results of the vote.
Legal certainty must also not be disregarded. Particularly in the case of the CTR II voting complaint, a repetition was waived for reasons of legal certainty, especially as economic actors had already made various dispositions on the basis of the affirmative decision, which could only have been reversed with disproportionate effort afterwards. It is obvious that today's case is different: On the one hand, the proposal was rejected at the ballot box - the legal situation therefore remains unchanged. On the other hand, CTR II at the time was about forecasts, but the «marriage penalty» was about essential, effective (numerical) information.
The groundbreaking verdict - the story continues
7.5 years after the vote comes the bang. The Lausanne judges declared the vote on the marriage penalty invalid by 4 to 1 votes. The decision of 10 April 2019 sets a precedent in the voting history of Switzerland. According to the highest authority in Switzerland, the freedom to vote within the meaning of Art. 34 para. 2 BV, including the transparency requirement of the voters, has been violated. The four judges who voted in favour concluded that the violations were such as to influence the very narrow result of the vote. The seri-ousness of the irregularity due to the striking difference between the figures is an important factor here.
The story continues - just how?
What are the consequences of this decision from Lausanne? The Federal Supreme Court ruled that the vote was invalid and annulled it. The Federal Council was then asked to decide what would happen to the initiative or vote. According to the principle, there are two options in this case: On the one hand, the Federal Council can again submit the proposal for a vote to the parliamentary deliberations or immediately start a new vote with the same initiative text. In principle, both variants have a real chance that the «marriage penalty» will finally be abolished. With the first option, however, there would also be the possibility of finally deleting the hotly debated and controversial paragraph in the initiative text that stipulates marriage as a life partnership between woman and man, which promises better chances of success under certain circumstances with a new vote on the bill and does not stipulate a new social «division» with the narrow paraphrase of the concept of marriage in the constitution with the omission of an old social plait. Shortly after publication of the Federal Supreme Court ruling, the Federal Council was inclined to give preference to the latter variant and to confront the People directly with the project. However, the CVP (Christian People's Party) did not agree with this. This to no surprise to the initiators, as they were well Aware of the problems surrounding controversial definition of marriage. Thanks to lobbying, the Christian People's Party succeeded at the end of June when the Federal Council announced its decision to send the initiative back to parliament for further deliberations. In August 2019, before the autumn session of 2019, the Federal Council issued an additional message to Parliament. The reason for this decision is a currently pending bill in parliament calling for the abolition of the marriage penalty. According to parliament, this pending bill could potentially be developed into an indirect counter-proposal to the initiative.
The decisive autumn session 2019
At least the Council of States gave the Federal Council a first damper in its first session on the subject in the 2019 autumn session and decided to reject the proposal by 25 votes to 18 for the submission of new proposals. It remains to be seen what the position of the National Council will be and what the final verdict of the Council of States will be. By 27 September 2020 at the latest, however, the people will be confronted with a new vote - regardless of the precise content.
It is evident that the last word has not yet been spoken in the matter of the «marriage penalty». A change in the tax treatment of married couples compared to cohabiting couples will come in the future. Be it with a
new vote and its approval or by means of an independent amendment of the legislation by the Parliament. In all scenarios, however, we can only hope for a balanced and fair solution for married couples as well as for cohabiting couples. One way or another, a referendum can never be repeated one-to-one. With regard to the approved complaint, it remains to be seen how the Federal parliament will decide on the further procedure and whether a counter-proposal will be sent to the urn, if necessary. If the Federal parliament decides in favour of an identical vote on the bill, the people would again be confronted with the three-tier initiative (taxes, social security and marriage). This would reveal whether the people rejected the 2016 bill with a view to tax considerations or whether they did so primarily, as Parliament did, because of the controversial and narrow definition of marriage, which can be regarded as a questionable exclusion of same-sex couples.
The decision of the Federal Supreme Court of 10 April 2019 is however to be welcomed and is justified from a legal perspective. In a delicate matter, it has given precedence to unhindered democratic decision-making over the customary restraint that results from the separation of powers.