A residence permit that a mother holds counts for child benefit even while the family benefits office attacks the paternity acknowledgment behind it as an abusive arrangement — at least until the main case decides.
Bundesfinanzhof By order of 9 September 2026Bundesfinanzhof (III B 83/25 AdVBundesfinanzhof, STRE202650173) the III Senate of the BundesfinanzhofBundesfinanzhof rejects the Familienkasse's complaintBundesfinanzhof against the Finanzgericht Münster order of 15 August 2025Bundesfinanzhof (10 V 783/25 Kg, AO) and leaves enforcement of a 24,508 Euro reclaim suspendedBundesfinanzhof without securityBundesfinanzhof until one month after the main case endsBundesfinanzhof.
The mother, a non-EU national who entered Germany in November 2014, claims benefit for her daughter TBundesfinanzhof (born 2015) and son S (born 2018)Bundesfinanzhof for January 2020 to April 2024Bundesfinanzhof. On 1 December 2014 J, a German national, acknowledged paternity of the unborn TBundesfinanzhof with her consent. T thus acquired German citizenship at birthBundesfinanzhof, and on 25 August 2015 the mother received an employment-permitting family residence permitBundesfinanzhof, continuously extended. The Familienkasse granted benefit for T from August 2015.Bundesfinanzhof After S's birth K acknowledged paternity on 10 July 2018Bundesfinanzhof, and benefit was granted for S from June 2018, continuing T's.
After provisionally stopping payments in April 2024Bundesfinanzhof, the Familienkasse revoked the grants from May 2024Bundesfinanzhof and, on 17 December 2024, retroactively for the dispute periodBundesfinanzhof, reclaiming 24,508 EuroBundesfinanzhof. It found an abuse of structuring optionsBundesfinanzhof: the acknowledgment had been chosen solely to create a residence title and thus a benefit claimBundesfinanzhof, so the formally held permit should not countBundesfinanzhof. The objections failed on 28 February 2025.Bundesfinanzhof
Enforcement is suspended where serious doubts existBundesfinanzhof: on summary review, weighty reasons creating uncertainty about law or decisive facts sufficeBundesfinanzhof. Formal entitlement is undisputedBundesfinanzhof: throughout the period she physically held the permitBundesfinanzhof, which is all holding requiresBundesfinanzhof. A permit has only factual effect for benefit purposesBundesfinanzhof, and the office is bound by the residence-law positionBundesfinanzhof: unlike for free-movement cases, it has no power to review the permit itselfBundesfinanzhof.
Against that background the office's section 42 route is seriously doubtful in lawBundesfinanzhof. Child benefit is a federally regulated tax rebateBundesfinanzhof, so the Abgabenordnung and its abuse section are not excluded as suchBundesfinanzhof. But no Bundesfinanzhof case law applies section 42 to an allegedly abusive paternity acknowledgmentBundesfinanzhof, and unclear law alone regularly requires suspensionBundesfinanzhof. The absence of a direct review power cannot be recovered indirectly through the general abuse provisionBundesfinanzhof. Parliament placed abuse of acknowledgments in special statutes — the civil-law prohibition until 28 July 2026 and now the residence-law presumption rules, under the act of 21 July 2026Bundesfinanzhof: civil status first, residence second, child benefit only third, with transition rules for pending examinationsBundesfinanzhof. Whether a formally effective acknowledgment later proves abusive is decided there, not through benefit lawBundesfinanzhof, which contains no acknowledgment-abuse rule of its ownBundesfinanzhof. Literature adds that structuring options presuppose economic transactions, not status acts such as marriage or parentage, and that section 42 cannot anticipate later legislation.
Factually the acknowledgment's motive is disputedBundesfinanzhof and reserved to the main caseBundesfinanzhof, which alone creates serious doubt. The file even notes the city stated on 11 September 2024 that T would keep German citizenship even if the acknowledgment were withdrawnBundesfinanzhof, the fifth year of life being complete, so the mother would keep her permitBundesfinanzhof — an argument the office never addressed before issuing the retroactive reclaimBundesfinanzhof.
Legal basis is section 62(2) no. 2 of the Einkommensteuergesetz, sections 69 and 128 of the Finanzgerichtsordnung and section 42 of the Abgabenordnung as discussed in BFH III B 83/25Bundesfinanzhof of 9 September 2026Bundesfinanzhof.
If the Familienkasse attacks a held residence permit through section 42 abuse law aimed at the underlying paternity acknowledgment, apply for suspension of enforcement: cite the lack of any review power over the permit, the special acknowledgment-abuse statutes, and the absence of BFH case law applying section 42 here.
