(2022) Boarding school fees: Are private school fees for children with ADHD tax-deductible?

Expenses for a child's private school attendance are generally covered by child benefit or tax allowances (child allowance and BEA allowance) as well as the training allowance and are therefore not additionally deductible. However, school fees - but not boarding costs - can be deducted as special expenses at 30%, limited to 5.000 Euro (§ 10 Abs. 1 Nr. 9 EStG). The question is whether the costs of boarding due to illness can be considered as extraordinary expenses according to § 33 EStG.

According to the BFH case law, accommodation and meal costs are not deductible if the boarding is for social, psychological or educational reasons. Costs incurred for the child's educational support, which are at most indirect consequences of an illness, are not recognised as extraordinary expenses (BFH ruling of 18.4.1990, BStBl. 1990 II p. 962).

Recently, the Düsseldorf Finance Court ruled that boarding costs of 28.000 Euro cannot be recognised as extraordinary expenses if the child attends an English private school (college in England) with smaller classes and more intensive support due to a simple attention disorder (ADHD). In this case, the private school attendance was not for the purpose of medical treatment, and the school attendance itself does not constitute medical treatment. Therefore, these are not medical expenses, but merely health care expenses or consequential costs of illnesses, which are not necessarily incurred and therefore not deductible (FG Düsseldorf of 14.3.2017, 13 K 4009/15 E, revision).

• According to the financial judges, there is also a lack of a public health officer's certificate issued before the start of the boarding. Although a specialist doctor certified an "emotional developmental delay with attention disorder and partial performance giftedness", this does not meet the required condition according to § 64 Abs. 1 Nr. 2c EStDV. For a "medically necessary external accommodation of a child suffering from dyslexia or another disability", proof must be provided by a public health officer's report or a medical certificate from a medical service.
• In the case in question, however, there is neither dyslexia nor a disability. At most, the diagnosed attention disorder can be considered a medical condition. Whether this was so severe that it could be considered a disability is not apparent. The judges, however, take a bold step and interpret the above condition to include the characteristic of illness under disability. Thus, they extend the legal wording to "illness or disability" and also require a public health officer's certificate for the "illness".

If the child is placed in a special boarding school due to a disability or illness, the boarding costs (accommodation and meals) for the private school are deductible as extraordinary expenses according to § 33 EStG. It is important that the medical treatment is the main focus. This medical treatment can also be educational support by medically trained staff. In this case, the boarding costs are direct medical expenses that are fully deductible - subject to the deductible burden.

However, the condition is that the medical necessity is proven by a public health officer's certificate issued in advance.