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Switzerland: Rejection of Abolishment of Marriage Tax Penalty and Constitutional Definition of Marriage

(Mar. 11, 2016) On February 28, 2016, Swiss voters rejected by a narrow vote of 50.8% to 49.2% a referendum to abolish the marriage tax penalty in Swiss law. (Vorlage Nr. 596, Vorläufige amtliche Endergebnisse [Initiative No. 596, Preliminary Official Results], Schweizerische Bundeskanzlei [Swiss Federal Chancellery] website (Feb. 28, 2016).) The “marriage penalty” refers to tax provisions that often result in a wife and husband paying more income tax by filing jointly than they would if they had remained single and filed as individuals. It is mandatory for a married couple or registered partners in Switzerland to file a joint tax return, and their income is added together regardless of their matrimonial property regime. (Bundesgesetz über die direkte Bundessteuer (DBG) [Federal Act on the Federal Direct Tax (DBG)], Dec. 14, 1990, SYSTEMATISCHE SAMMLUNG DES BUNDESRECHTS [SR] [SYSTEMATIC COLLECTION OF FEDERAL LAWS] 642.11, art. 9.)

The popular initiative sought to insert a new paragraph into the Swiss Constitution to define marriage as a “long-term legally regulated union between a man and a woman which has to be treated as single economic unit.” It stated that a marriage cannot be discriminated against in comparison to other ways of living, in particular with regard to taxes and social security benefits. (Bundesbeschluss über die Volksinitiative “Für Ehe und Familie – gegen die Heiratsstrafe” [Federal Decision on the Popular Initiative “In Favor of Marriage and Family – Against the Marriage Penalty”], BUNDESBLATT [BBl.] [FEDERAL GAZETTE] 4849 (2015).)

Criticism

The Swiss Federal Council recommended rejecting the referendum. It pointed out that a switch to individual taxation for married couples would only be possible after a second constitutional amendment. The Federal Council added that the initiative’s narrow definition of marriage would prevent opening up the institution of marriage to same-sex couples.  (Bundesrat [Swiss Federal Council], Volksabstimmung vom 28. Februar 2016, Erläuterungen des Bundesrates [Referendum of February 28, 2016, Explanations from the Federal Council], at 12, Swiss Federal Council website.)

Opponents of the initiative claimed that the real purpose of the vote was to prevent efforts to extend marriage to same-sex couples. Bastian Baumann of the gay organization Pink Cross was quoted as saying, “[w]e are glad that the electorate has recognised this sham.”  (Susan Misicka, Tax Break for Married Couples Rejected, SWISSSINFO.CH (Feb. 28, 2016).)

Future Developments

The Christian Democratic Party (CVP), which initiated the referendum, stated that the narrow rejection of the referendum “clearly showed” that the Swiss people did not want further discrimination against married couples. The CVP has therefore submitted a motion requesting the Federal Council to provide married couples with a tax bonus in order to relieve the tax burden imposed by joint filing, to be effected either through income splitting or an alternative calculation, which would compare the tax burden for spouses filing together and filing separately and apply the lower rate.  (Simon Hehli, Heiratsstrafe. Die CVP gibt sich nicht geschlagen [Marriage Penalty. The CVP Does Not Give Up], NEUE ZÜRICHER ZEITUNG (Mar. 3, 2016).)