On 12th June 2020, the Luxembourg Constitutional Court handed down an anticipated decision regarding the regime on collective taxation of married couples and its alleged discrimination of persons registered as partners under the regime of the law of 9 July 2004. Indeed, article 3 (d) of the Luxembourg income tax law (“LITL”) provides for the possibility for spouses, one of whom is a resident and the other a non-resident, to apply for collective taxation by joint application under the conditions provided for therein. However, this possibility does not extend to persons registered as partners under the regime of the law of 9 July 2004.
The question arose whether this dissimilar treatment of married couples and partners by Article 3 (d) of the LITL amounted to discrimination contrary to Article 10bis (1) of the Luxembourg Constitution, which holds that ‘Luxembourgers are equal before the law’. Discrimination under this rule arises when the categories of persons between whom discrimination is alleged are in a comparable situation. The Luxembourg Constitutional Court was thus asked to establish whether married couples and partners were in a comparable situation for the purpose of Article 3 (d) of the LITL.
In this respect, the Constitutional Court held that the law of 9 July 2004 introducing the partnership regime intentionally created a difference in treatment between spouses and partners, given that the legislator's purpose in 2004 was not to assimilate the partnership regime to marriage. On that basis alone, the Court held that the situation of spouses, bound by marriage, and that of partners within the meaning of the law of 9 July 2004 are not comparable. The Court thus concluded that Article 3 (d) of the LITL is not contrary to Article 10bis (1) of the Luxembourg Constitution.
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