Who is interested in black money other than the tax office
Family law is about the family, as the name suggests, about conflicts and also about money. Family ties not only create romantic and familial bonds, but often also financial ones in the form of maintenance payments. This either as child support or (post-marital) maintenance. The net income is what matters here. But what about illegal income, so-called “black money”? Is undeclared income relevant for the alimony to be paid or can one “earn something on the side”?
What is the maintenance assessment basis?
If you have to pay maintenance, the first step is to determine the so-called maintenance assessment basis. Generally speaking, if you earn a lot, you pay a lot. Therefore, the first step is to find out what the actual income of the maintenance debtor is. It also depends on how the maintenance debtor earns money, self-employed or employed. In the case of purely employed persons, who are not subject to large fluctuations in income, the monthly net income can be determined, for example, by means of three or more pay slips. Other allowances, commissions or bonuses can also increase the maintenance assessment basis.
It can be somewhat more complex if the maintenance payer is self-employed. Especially in the case of self-employed persons, income can vary greatly from month to month. Therefore, one looks at a longer “observation period” of three years and takes the average value. It is also important to know that an income tax assessment alone is not necessarily meaningful, because not all things that are tax deductible also reduce the maintenance assessment base.
Cooperation in maintenance proceedings?
Income documents must generally be made available if there is a claim to maintenance, otherwise the court may order this. Again and again, if there is uncertainty about the actual income, experts must also be consulted. In the case of both child and spousal maintenance, there may be the possibility of “tension” on the part of the person obliged to pay maintenance. Here it depends, among other things, on what the person could earn, taking into account their education, the labor market situation ect. That is, someone who until recently worked as a primaria, for example, cannot suddenly decide that her new vocation is part-time swimming teacher in order to avoid high alimony payments. Exceptionally, the actual living expenses of the person obliged to pay maintenance can also be used. So, for example, someone allegedly earns a thousand euros a month, but lives very lavishly with a big car, a big house and expensive luxury vacations, this will be conspicuous and will have to be taken into account further down the line.
And what if someone earns extra money “on the side”?
The actual economic situation of the maintenance debtor is decisive for maintenance. So all, actually achieved income, whatever kind. Also additional income, from “black” thus in the “botch” carried out activities can be relevant for the maintenance. In advance, it may be said that especially when it comes to spousal maintenance, it is not advisable to report someone to the tax office for undeclared work. It is possible that such actions could lead to the loss of the right to alimony.
Time and again, there are situations where someone who owes maintenance for children or ex-partners officially earns very little, but regularly earns a not inconsiderable amount of income “off the books”. In such cases, case law has ruled that income earned in an unlawful manner (e.g. from undeclared work) also increases the maintenance assessment basis. For example, if a person is self-employed and earns a substantial part of the income illegally, not only the taxed income is relevant, but also the “black money” when calculating the alimony. This is the case for the past in any case. If there are actual repayment obligations due to the black income to the tax authorities, these can be taken into account. This payment obligation must be concretely asserted and proven by the person obliged to pay maintenance.
More maintenance due to undeclared work also for the future?
In this context, it is also interesting to note that under certain circumstances, undeclared income can even increase the maintenance to be paid in the future. In the decision 6 Ob 186/14t of 19.11.2014, the Austrian Supreme Court ruled that if the person obliged to pay maintenance has generated undeclared income over a longer period of time and does not even claim to have paid the outstanding taxes and social security contributions for the past, the undeclared income can also increase the maintenance to be paid on an ongoing basis, thus in the future.
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