On 9 December 2008, the German Federal Constitutional Court held the 2007 restriction of the commuter tax allowance to be unconstitutional.

Furthermore, the German Federal Constitutional Court stated that, until a new regulation is issued, the current regulation (Section 9 (II) 2 EStG) will remain applicable without, however, enforcement of the limitation of full deductibility to hardship cases (commutes exceeding 20 km). Commuters are therefore now allowed to deduct a lump sum of EUR 0.30 for every driven km from their home to their place of work starting with the first km as had been the legal situation before the 2007 restriction.

Due to this change, the Federal Ministry of Finance announced that every income tax assessment for the period 2007 is deemed provisional with immediate effect under Section 165 (II) nr. 2 German Fiscal Code (Abgabenordnung, AO). Under German law, taxes may be assessed provisionally if the premises for such taxes are not met with certainty. A provisional tax assessment may be withdrawn, changed or declared final. As a result, if the prospective regulation requires withdrawal or change of the tax assessments, tax authorities will withdraw or change the assessments ex officio and taxpayers will not need to appeal against the income tax assessment.