If the people’s initiative “For marriage and family – against the marriage penalty” is passed, it will give parliamentarians a clear mandate to eliminate a form of discrimination against marriage and registered partnerships, says Peter Hegglin, president of the Conference of Cantonal Finance Directors. For the Christian Democrat from canton Zug, the initiative will create clarity and avoid a tedious reform of tax laws.
This judgment was repeatedly confirmed, while being fine-tuned at the same time. In the meantime, cantons have referred to this Supreme Court judgment when considering tax legislation. It is only at the federal level that couples who are married or living in registered partnerships are still at a disadvantage in terms of taxes and social insurance compared to common-law couples. They pay more taxes for the same level of income and assets. The initiative would stipulate a model of taxation for married persons that takes the form of a family tax called “taxation of an economic union”.
The initiative states: “Marriage consists of long-term cohabitation, under the framework of law, between a man and a woman. For tax purposes, marriage is considered an economic union. It should not be penalised in comparison with other living arrangements, particularly with regard to taxes and social insurance”.
The taxation of people as individuals is therefore not up for discussion. The wording of the initiative, however, doesn’t stipulate a specific method of taxation with the exception of joint taxation, a well-known model in all the cantons. The text does not dictate that it should be a splitting model with a factor of two or less, or family ratios taking into account the number of family members, or a model that uses a double tariff as a basis of calculation. Depending on the chosen model, the financial impact would differ.
As the cabinet stated in its message to voters, married couples face both disadvantages and advantages in the area of social insurance. The initiative text does not call for preferential treatment – for example, double individual pensions for a married couple. There is room here as well for compromise or for another model of harmonisation.
Definition of marriage
In the parliamentary debate, the Christian Democrats were accused of seeking to establish marriage as an institution between a man and a woman through its proposed change to the federal constitution, thereby thwarting same-sex marriages. However, this does not hold true because the extension of marriage to same-sex couples would require a referendum anyway. The decision to eliminate the marriage and partnership penalty can be pursued independently of a decision to open the door to marriage for same-sex couples. Indeed, the text of the Christian Democrats’ initiative doesn’t change current jurisprudence. It mirrors the current established law. The initiative text, however, gives parliamentarians a clear mandate to eliminate fiscal discrimination against married couples. The principle of non-discrimination will be anchored as a basic right in the federal constitution.
It appears that the definition of marriage was the deciding factor in parliament’s ultimate decision to reject the initiative. Too bad!
If the people follow parliament’s recommendation, a real chance will be missed to eliminate a form of discrimination that was acknowledged by the Federal Court’s decision in 1984. It could take decades before a new bill is available for consultation. Such a result, however, should not be viewed as support for individual taxation. The constitution obliges the federal government to take the cantons into consideration when it comes to tax harmonisation. A “no” to this initiative does not remove this obligation. The introduction of individual taxation would violate this duty, forcing all the cantons to shift from joint assessment to individual taxation.
Individual taxation would not make the tax system any fairer. Delimitations and corrections are necessary in order to ensure that taxation reflects economic capacity. It would be necessary to determine various rules for the allocation of taxable income between two parties. For example, the income of underage children, children’s deductions, the allocation of income from common self-employment, non-consideration of single-earner couples, and so on. In addition, the implementation of individual taxation would lead to an increase of around 30% to 50% in administrative expenses.
This transformation could only be executed for administrative and tax-systematic reasons if it was implemented simultaneously for all tax jurisdictions in Switzerland. A switch to individual taxation would affect other areas of law, namely those in which the calculation of taxes, contributions, benefits, etc. depend upon the control factors set out in the assessment, such as supplementary benefits, old-age and survivors’ insurance, disability insurance, maternity benefits, unemployment insurance for those who are self-employed, health insurance subsidies, daycare contributions, school dentist tariffs, or scholarships.
It is for these reasons that I recommend voting in favour of this initiative. It will bring about the following advantages: tax discrimination for marriages and registered partnerships will finally be eliminated; nothing will change with respect to the equal treatment of couples who are married or in registered partnerships in terms of tax and social insurance; it will create clarity for future tax law; and an expensive reform of tax law can be avoided.
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Translated by Catherine McLean