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In several federal states, AfD MPs are apparently taking targeted action against non-profit organizations with the aim of revoking their status. This is made possible by an opaque legal situation.
“Just as the left-wing ticks hinder our work wherever they can, we AfD MPs at federal and state level will not tire of denouncing their misdeeds” – with these words, the then Bavarian AfD MP Uli Henkel announced in a YouTube video in January 2023 that he had challenged the non-profit status of the association “Munich is colorful!” with the responsible tax authorities. As evidence, he handed over several hundred documents to the responsible head of the tax authority in Munich.
The AfD politician’s accusation: The association “Munich is colorful!” is almost exclusively committed to the AfD and its activities. However, non-profit organizations are obliged to remain party neutral. Henkel therefore demanded that the tax authorities revoke the association’s non-profit status.
“Famous strategy of the AfD”
The association “Munich is colorful!” has been around since 2010. The association sees itself as a civil society initiative that advocates for tolerance, democracy and the rule of law by promoting a self-responsible and solidarity-based civil society at the local level, says the association’s chairwoman, Micky Wenngatz. “To this end, we carry out intensive information and educational work, offer a platform for networking like-minded organizations and create publicity, for example by organizing cultural festivals and demonstrations.”
The association’s work against anti-Semitism, racism and right-wing extremism makes it a target for the AfD, says Wenngatz. Therefore, she was not surprised that the AfD took action against the association. “It is now a well-known strategy of the AfD to target and put pressure on organizations that it dislikes or that criticizes it with parliamentary inquiries, ‘reports’ to the tax office and the like,” she says.
The tax office initially informed the association in writing about the allegations made by AfD MP Henkel and the resulting review of its non-profit status.
When asked, a spokesman for the AfD in Bavaria said that the AfD welcomes charitable work, but that “certain conditions” must be met. “If associations misuse tax money and disregard their association goals in order to agitate against a democratic opposition party, this is no longer the case.” In some cases, it is therefore necessary to check whether the legal conditions for charitable status are actually met. No complaints have been filed with the tax office.
Small inquiries in the State parliaments
The AfD’s actions against “Munich is colorful!” are not an isolated case, says Stefan Diefenbach-Trommer, board member of the “Legal Certainty for Political Will Formation” alliance. In several federal states, the AfD is deliberately trying to question the non-profit status of clubs and organizations it does not like – for example, through small and large inquiries in the state parliaments. “This creates veritable lists of hostile clubs,” says Diefenbach-Trommer. The AfD wants to ensure that activities that promote democracy are avoided.
In recent years there have been a number of such requests, for example in Bavaria regarding Greenpeace and the Bavarian Refugee Councilin Berlin for Berlin Association of Victims of the Nazi Regime – Association of Antifascists or in Saxony-Anhalt to Association “Together”.
There are also several Reports of organizations against which complaints have been filed with the relevant tax office. For example, at the Hessian tax office in Fulda, According to the association “Fulda stands up” More than 30 complaints have been filed against the association, which has been the focus of the local AfD for years. In Saxony, the AfD took action against the State funding for the association “Treibhaus” in Döbeln in Saxony-Anhalt against the Non-profit status of the association “Miteinander”The AfD did not respond to a request for comment on the federal and state governments’ actions.
“As a rule, the tax office does not have to actively investigate reports of alleged violations of non-profit law,” says Joschka Selinger from the Society for Civil Rights (GFF). “However, indications of behavior that is detrimental to non-profit status can play a role in the tax office’s regular review of non-profit status.”
It is not possible to verify whether the number of complaints to tax offices about non-profit organisations has increased in recent years. A request to the finance ministries of all federal states revealed that this number of complaints is not recorded. Only from the response of one Small request from the Lower Saxony state government shows that in Lower Saxony the number of reports rose from four in 2010 to 22 in 2019. In two cases between 2015 and 2019 the report was followed by the withdrawal of non-profit status.
Non-profit brings many advantages
The revocation of non-profit status by the responsible tax office can have far-reaching consequences for an association or organization. This is because non-profit status comes with a number of privileges: donors can partially deduct their donations from their taxes, and no corporate or trade taxes have to be paid. The non-profit status of an association or organization is also a prerequisite for many grants.
The responsible tax authorities decide whether an association is recognized as a non-profit organization. Every three years, an examination is carried out to determine whether an association meets the criteria. If the tax authorities decide to revoke non-profit status, this is done retroactively. This means that, among other things, the association is threatened with a high tax surcharge. Since non-profit status limits the formation of financial reserves by an association, this can have existential consequences.
“Even the fact that the tax office questions the non-profit status has an effect,” says Diefenbach-Trommer. “Because such a procedure means a lot of work and also costs.” That can slow down a large, nationwide organization with reserves and legal advisors. “For a small association, it can bring the entire association’s operations to a standstill.”
“Non-profit law is not up to date”
The fact that many associations have to fear for their non-profit status is mainly due to legislation, says Selinger. “The current non-profit law is outdated and lags decades behind the realities of civil society.”
The catalogue of charitable purposes lacked many socially relevant concerns such as commitment to democracy and human rights or social justice. “In addition, the law does not clearly state whether associations are allowed to pursue their charitable goals using political means. This makes commitment to democracy and the rule of law more difficult.”
At least since the ruling of the Federal Finance Court (BFH) against the non-governmental organization Attac, there has been great uncertainty among non-profit organizations, says Selinger. In 2014, the Frankfurt tax office revoked Attac’s non-profit status because the organization was too political. Two years later, however, the Hessian Finance Court upheld a lawsuit by Attac and confirmed its non-profit status. However, the Federal Finance Court overturned this ruling in 2019.
“The Attac decision of the Federal Finance Court has drastically exacerbated the problem that many socially relevant topics are not recognized as charitable purposes,” says Selinger. “Up until then, many associations had invoked the purpose of ‘political education’ when an activity serving the common good could not be classified under one of the existing purposes.” The Federal Finance Court rejected this and ruled that participation in the public decision-making process under the purpose of “political education” must be limited to purely educational policy issues.
The AfD often refers to this Attac ruling in its inquiries about non-profit organizations. In addition, the AfD parliamentary group in the Bundestag called for Motion entitled “No non-profit status for political agitation” the Federal Government to “instruct the tax administrations of the Federal Government and the states with immediate effect to follow the tenor of the Federal Fiscal Court in all relevant cases”.
Uncertainty among non-profit organisations
The uncertain legal situation and the pressure from the AfD are leading to great uncertainty among non-profit organizations, says Diefenbach-Trommer.
In February 2022, the Ministry of Finance issued a Application Decree issued, which the tax offices of the states are to adhere to. It states that associations may express their views “on current political issues outside of their statutory purposes”. However, current politics may not be the main focus and an association must be politically neutral.
“This clarification is important because clubs can at least occasionally act beyond the purpose of their statutes without jeopardizing their non-profit status, such as a sports club that comments on racist attacks,” says Selinger. However, the wording “occasionally” continues to raise questions because it is unclear when the limit of “occasional” statements is exceeded and thus continues to lead to great practical uncertainty.
In addition, there are some prominent examples from recent years that have further increased insecurity. In addition to Attac, the campaign platform Campact the non-profit status was revoked, as was the petition platform Change.orgRecently, the fact-checking team from People’s Petter.
Non-profit law should be revised
The traffic light coalition had actually announced that it would revise the non-profit law. However, not much has happened so far, complain the associations. A spokesman for the Federal Ministry of Finance said in response to a query that the federal government was still discussing “which specific regulations are necessary to achieve the goals agreed in the coalition agreement”.
Under current law, non-profit organizations are already able to call for demonstrations against right-wing extremism.
“Munich is colorful!” continues non-profit
The association “Munich is colorful!” is still considered a non-profit organization. This is also because the Munich tax office was very cooperative and the association had legal advice, says Wenngatz. “As a result, we have added to our statutes, in particular we have further differentiated the non-profit purposes.”
Nevertheless, the whole process has left clear traces, says Wenngatz. The whole process took almost a year. “And even today, people tend to think a third time about how to formulate texts and actions.”
The current situation means that many clubs no longer speak out on socially important issues for fear of possible consequences. “The AfD will continue its strategy of attacking clubs and organizations that are committed to fighting right-wing extremism. Such a sword of Damocles affects the way clubs think and act and ties up enormous volunteer resources that would be better used in the fight against right-wing extremism.”