Suspension of execution (tax law, Germany)

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The term “ suspension of execution” is regulated in Germany in Section 361 of the Fiscal Code and relates to out-of-court redress procedures .

definition

Basically, despite an appeal such as B. an objection or judicial procedure, the collection of the tax or the execution of the contested administrative act , z. B. a disputed tax amount is to be paid in principle despite filing an objection.

Practical example

A objects to the 2013 income tax assessment with a fixed income tax of € 12,000, which is still to be paid in the amount of € 5,000 after deducting the advance payment, with which he claims that the tax was set too high by € 2,000.

solution

A must pay the € 5000 still to be paid in full. The objection does not delay or hinder the collection of € 2,000 ( Section 31 (1) AO).

In § 361 para. 2 AO provides that the enforcement of an administrative act may be suspended until the decision on the opposition. This means that the suspension inhibits the enforceability of the administrative act. "It has the effect that the suspended charge is not to be paid, no late payment penalties are levied and no enforcement measures may be carried out."

requirement

"Suspension of execution presupposes that the administrative act to be suspended is contested by objection, action or revision [...] [...] and the appeal procedure has not yet been concluded." "Administrative acts that impose an obligation on the taxpayer to perform are enforceable and therefore suspendable [...] ".

“On the other hand, administrative acts that reject the issuance or correction of an administrative act are not enforceable, e. B. Rejection of a notice of amendment , rejection of a deferral or waiver, rejection of a reduction in advance payments. ”Furthermore, this is done at the request of the citizen, which is usually submitted together with the objection. In rare cases, the tax authorities themselves suggest that enforcement be suspended. This is conceivable above all if the extent of the suspension represents a correspondingly high sum and the prospect that the citizen will be right with his objection is probable. The reason for this is to avoid the high subsequent interest for the tax office.

Serious doubts

Enforcement should be suspended if there are serious doubts about the legality of a decision. This is the case if a summary examination reveals that, in addition to circumstances arguing for legality, weighty reasons arguing against legality come to light, which cause indecision or uncertainty in the assessment of the legal question or ambiguity in the assessment of the question of fact. Serious doubts are always given when the relevant legal question has been decided differently by the two highest federal courts or by the Federal Fiscal Court itself.

Examples are here when the authority deviates from the case law of the Federal Fiscal Court; pending decision by the Federal Fiscal Court on a legal issue that is judged differently by the tax courts; unclear legal situation and concerns in the literature against the legal interpretation of the tax office or the tax court [...].

Unreasonable hardship

“Unreasonable hardship within the meaning of this provision exists if the taxpayer would suffer disadvantages as a result of the execution of the administrative act that go beyond the actual performance and cannot or can only be made up with difficulty or if the economic existence of the taxpayer would even be jeopardized . "

Procedural path

The suspension of the execution is generally to be applied for at the tax authority that issued the contested administrative act ( Section 361 (2) sentence 1 AO, Section 69 (2) sentence 1 FGO). Only in exceptional cases can the application in accordance with Section 69 (3) FGO (prior to filing the lawsuit) be submitted immediately to the tax court. According to Section 69 (4) FGO, such an application is only permissible if the tax authority has previously rejected an application in whole or in part, if it has not made a factual decision on the application within a reasonable period of time without giving a sufficient reason, or if enforcement is imminent. As long as the application for suspension has not yet been decided, enforcement measures should not be taken.

If the application is rejected in whole or in part by the tax office, the applicant has two options:

  1. He can appeal against the negative decision according to § 347 Abs. 1 Nr. 1 AO
  2. He can apply to the court of the main issue for the suspension of enforcement in accordance with Section 69 (3) and (4) sentence 1 FGO

The taxpayer can go both ways at the same time, i.e. both lodge an objection and submit the application to court ( Section 361 (5) AO and Section 69 (7) FGO). If he receives the suspension of execution in the objection procedure, the application has been settled in accordance with Section 69 (3) FGO. If the taxpayer is successful in court, the objection to the refusal of the suspension has become irrelevant.

However, if the taxpayer has only lodged an objection and this is rejected by the tax office, he cannot bring an action against it. If the application according to Section 69 (3) FGO is rejected in whole or in part by the finance court, the applicant can lodge a complaint with the Federal Fiscal Court if this has been approved by the finance court ( Section 128 (1) and (3) FGO).

Extent of suspension

The tax authority has to suspend the execution of the contested administrative act to the extent that the taxpayer's request is sufficient and there are serious doubts about the legality of the notice or undue hardship.

Practical example

A taxpayer challenges a property transfer tax assessment of € 12,000 with the aim of setting an amount of € 8,000.

solution

The authority can suspend execution in the amount of the difference of € 4,000.

However, if there are serious doubts about the legality of the contested decision or to change other tax notices to the detriment of the appellant, the suspension of the enforcement of the contested decision cannot be limited to the difference. Furthermore, when calculating the suspension amount, Section 361 (2) sentence 4 AO must be observed.

Security deposit

The suspension of execution can be made dependent on a security deposit at the discretion of the customer . The suspension of enforcement then only becomes effective once the security has been provided (so-called condition precedent). "The decisive factor is whether the suspension of execution in the event that the applicant is defeated in the legal dispute would jeopardize the fulfillment of the disputed claim."

Effect of the suspension

For the duration of the suspension of the enforcement of the contested administrative act, enforcement measures must not be taken. Enforcement measures that have already been taken remain in place unless they are expressly lifted or a retroactive suspension of enforcement has been ordered. Furthermore, no late payment surcharges will be charged (they may not apply retrospectively in the event of suspension of enforcement from the due date), offsetting with claims suspended from enforcement is not permitted. A (payment) limitation period for the suspended claim is also interrupted.

Duration of suspension of execution

The suspension of execution ends even without express cancellation i. d. Usually one month after notification of the decision on the objection or service of the judgment or after receipt of the withdrawal of the appeal or notification of a notification of amendment. In the case of Section 365 (3) AO, however, the execution of the notification of amendment must be suspended if serious doubts persist.

literature

  • Ramona Andrascek-Peter, Wernher Braun, Rainer Friemel, Kurt Schiml: Textbook Tax Code With Tax Court Code. 18th revised edition, nwb, ISBN 3-482-53627-9 .
  • Manfred Bornhofen, Martin C. Bornhofen: Taxation 1 Legal situation 2014: General tax law, tax code, sales tax. Springer Gabler 2014, ISBN 3-658-05561-8

Individual evidence

  1. ↑ a b c d e f g h i Ax / Große / Melchior / Lotz / Ziegle: Tax Code and Tax Court Code , 20th edition, Finance and Taxes Volume 4, p. 649 ff.
  2. ↑ a b c d e f g Cf. Peter Gerlach from Szymczak, "The objection procedure according to the tax code", NWB F. 2 p. 7689, under XIII and Andrascek-Peter / Braun / Friemel / Schiml, "Textbook tax code", 16 Edition 2009, online  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , As of: September 2014, reference (s): [DAAAA-88427]@1@ 2Template: Dead Link / datenbank.nwb.de  
  3. ↑ a b Taxation 1, legal situation 2013 General tax law, tax code, sales tax, 34th edition by Manfred Bornhofen, Martin C. Bornhofen, 9.1.2. P. 111.
  4. ↑ BFH BStBl 93, 263; 94, 756; 95, 814 para. 13 from Klein / Brockmeyer AO § 361 Comment on AO § 361, 12th edition 2014
  5. ↑ BFH BStBl 69, 145; 86, 490 para. 13 from Klein / Brockmeyer AO § 361 Comment on AO § 361, 12th edition 2014
  6. ↑ Klein / Brockmeyer, Commentary on AO § 361, 12th edition 2014 from online from October 29, 2014
  7. ↑ BVerfG , decision of October 11, 2010, Az. 2 BvR 1710/10, full text ; BFH BStBl 67, 255; BFH / NV 87, Rn. 14 277
  8. ↑ See AEAO margin no. 3.1 and 3.2
  9. ↑ BFH, judgment of November 10, 1994, Az. IV R 44/94, full text = BStBl II 1995, 814, 816.