TF denies health insurance discount to father with alternating custody

Context

TL;DR

• The Federal Supreme Court rejects an appeal by a divorced father.
• Custody of the children alternates between the parents.
• No deduction of 9'000 francs per child.
• Maintenance payments already deducted rule out double tax relief.

Key facts

• Place: Canton Lucerne
• Authority: Federal Supreme Court
• Amount: 9'000 francs per child
• Custody: alternating
• Official residence of the children: with the mother
• Outcome: appeal dismissed
• Reason: double relief not provided for by law

The ruling in the Lucerne case

A divorced father residing in Canton Lucerne with several children cannot obtain a health insurance premium reduction based on the flat-rate deduction for children that the compensation office denied him. The Federal Supreme Court dismissed the appeal and deemed the cantonal decision lawful. The case directly concerns riduzione dei premi della cassa malati, but the decisive issue is the relationship between maintenance payments already deducted and a second deduction.

According to the judgment published today, the man and his ex-wife care for the children in alternating weeks. The divorce judgment awarded custody to both parents and established alternating custody. The children’s residence is nevertheless with the mother, where they are officially registered. Expenses incurred during each custody period are borne by the parent with whom the children are staying at that time. The father also pays the mother maintenance, which also serves to cover part of the costs of health insurance and healthcare.

The parent already benefits from the deduction for maintenance payments made to his ex-wife; allowing one for the children as well would have resulted in double relief, which is not provided for by law.

The cantonal court linked this interpretation to case law on tax deductions for dependent children. It referred to the Federal Direct Federal Tax Act, which excludes additional deductions when deductions for maintenance payments have already been claimed. It did not consider it decisive that the father cares for the children in rotation and bears the expenses during the custody periods.

For applications for premium reductions, the review takes place as part of mass administration, with standardized and automated processing of case files. The Federal Supreme Court therefore considered the cantonal conclusions compatible with higher-ranking law and dismissed the appeal. Moreover, cantonal law does not establish who is entitled to the flat-rate deduction in cases of alternating custody.

Operational details

The practical issue: a single tax allowance for the children

The Lucerne decision compares four facts that can coexist in everyday life but did not carry the same weight in calculating the tax allowance. The father pays maintenance, has the children stay with him every other week, bears the expenses when they are with him and has the children officially registered with their mother. The cantonal court and the Federal Supreme Court, however, focused the calculation on the deduction already linked to the maintenance payments and on the civil domicile.

The criterion followed by the judges can be understood as follows: the maintenance contribution paid to the mother already contributes to covering health insurance and healthcare expenses. Recognizing the 9'000 francs per child as well would have resulted in the disputed double tax relief. Expenses paid directly during alternating custody did not alter this conclusion.

The grey area identified by the Federal Supreme Court

The highest judicial authority nevertheless pointed out an inconsistency in the cantonal reasoning. For practical reasons, the Cantonal Court used the children's domicile as shown in the residents' register. That same decision-making process, however, ruled out in-depth checks of the custody arrangements, even though those arrangements were governed by the divorce judgment. In other words, the document was used to determine the domicile and maintenance obligations, while the actual custody arrangement was not examined in the same way.

This observation did not result in the appeal being allowed. The Federal Supreme Court indicated that other solutions are possible, but confirmed that Lucerne law does not specify who is entitled to the flat-rate deduction when custody is alternating. The judgment therefore does not automatically grant the benefit to the parent who bears the expenses during their weeks.

The parallel with dichiarazione delle imposte remains an element of the cantonal reasoning: the Federal Direct Tax Act was cited to support excluding an additional deduction when maintenance payments have already been deducted. For the case at hand, the practical point is to distinguish the right to custody from the possibility of combining two deductions.

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Key points

How to check your own case

To examine a decision on the reduction of premiums in a situation of alternating custody, it is advisable to reconstruct the facts in the same order in which they emerge from the Lucerne case. The aim is not to automatically add up all expenses incurred, but to understand which item has already been used for the deduction and which domicile was taken into account.

Four practical steps

1. Retrieve the divorce judgment. In the case examined, the appellant submitted it to the court. From that document, the previous instance obtained information on maintenance obligations and the children's domicile, as well as the custody arrangements.

2. Distinguish maintenance payments from custody expenses. The contribution paid to the mother must be kept separate from the costs incurred directly during the weeks in which the children are in the father's or the other parent's care. The decision considers the maintenance payments already deducted and does not turn custody expenses into a second deduction.

3. Verify the civil domicile. The children are officially registered with the mother, and this information was used as a reference in the standardized processing of the applications. The domicile recorded by the residents' registration office therefore had a concrete bearing on the case.

4. Compare the decision with cantonal law. In Lucerne, the flat-rate deduction is 9'000 francs per child, but the law does not determine who is entitled to it in cases of alternating custody. The review must therefore focus on the determining income, the maintenance payments already claimed, and the reasoning of the compensation office.

If the decision is challenged

In this case, the process went from the compensation office to the Lucerne Cantonal Court and finally to the Federal Supreme Court. The judgment does not indicate an automatic entitlement for the parent who shares the weeks with the former spouse. Instead, it shows that the appeal must address the precise reason for the refusal: avoiding double relief.

Before assessing a challenge, therefore, it is useful to assemble the divorce judgment, the calculation of the determining income, and the decision received. The costs incurred during custody alone do not determine the outcome of the case examined.

To estimate the overall effect on disposable income, use the calcolatore stipendio.

Source: tio.ch