Disclosure of administrative acts (Germany)

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In German administrative law, the announcement of an administrative act is the opening of the administrative act to the person concerned with the knowledge and will of the authority ( Section 41 (1) of the Administrative Procedure Act ).

meaning

An administrative act must be announced to the person to whom it is addressed (content addressee). The administrative act does not legally exist until it is announced (it is “in the world”) and develops external effectiveness. From this point in time, the legal remedies periods run . The announcement can also be made to other persons (announcement addressee). This can be the authorized lawyer, tax advisor or the supervisor of the content recipient. A distinction must be made between the external effectiveness and the internal effectiveness. In principle, the internal effectiveness comes into effect when it becomes final , in particular when the period for legal remedies has expired.

Legal regulations for the disclosure of administrative acts can be found in § 41 VwVfG, § 37 SGB ​​X, § 122 AO. Section 41 of the State Administrative Procedure Acts also contain identical provisions .

species

Notification through formal delivery is to be distinguished from the normal case of non-formal announcement . It is carried out in accordance with the rules of the federal administrative delivery act (especially according to § 3 , § 4 , § 5 and § 5a VwZG) and the administrative delivery laws of the federal states. The public announcement is made by means of a customary notice .

Disclosure action and disclosure will

So that the administrative act can be attributed to the authority, it must have wanted it to be made known to the addressee and specifically to this addressee. Incidental knowledge of the existence of an administrative act is not a disclosure (example: a landowner learns that a building permit has been granted to the neighbor). There are no deadlines for appeal for the neighbors. This does not mean that he can still challenge the building permit in the absence of effective notification when the building has long been erected. The filing of legal remedies can be forfeited if the neighbor shows by doing nothing for a long time that he has no objection to the project.

Notification form

The form in which the notification is made is at the discretion of the authority. It is initially based on the question of whether the administrative act itself must be issued in a certain form (e.g. in writing). Since administrative acts can in principle also be issued orally (also by telephone) or by means of signs (e.g. traffic signs) ( Section 37 (2) VwVfG, Section 33 (2) SGB X, Section 119 (2) AO), the same is an announcement Shape possible. If the administrative act is made in writing and no formal delivery is required, it is often transmitted by ordinary letter. If the authority is interested in proving the exact time of receipt, it can also opt for formal delivery. Personal delivery to the addressee is also possible.

Announcement fiction

An administrative act that is transmitted in Germany by ordinary mail is deemed to have been announced on the third day after being posted to the post ( Section 41 Paragraph 2 VwVfG, Section 37 Paragraph 2 SGB X, Section 122 Paragraph 2 No. 1 AO - three-day fiction ). For announcements abroad, there is only a fictitious regulation for tax law: According to Section 122 (2) No. 2 AO, the fictitious announcement occurs one month after the item is posted to the post office. If the administrative act is transmitted electronically, the three-day fiction applies to recipients in Germany or abroad. In order to be able to calculate the fictitious notification time, the authorities must note the date of posting in their files. If such a note is missing, a fiction of disclosure cannot occur.

If the administrative act is only received by the addressee after the fictitious access time, the administrative act is only effectively announced at the later time. If the administrative act actually reaches the recipient on the day after it is posted, it is still considered to be announced on the third day.

If the authority chooses formal service, the following applies:

  • In the case of notification in Germany by means of delivery by registered mail (without acknowledgment of receipt), the three-day fiction applies ( Section 4 (2) sentence 2 VwZG). Formal delivery by registered mail abroad is not permitted (arg. § 9 Paragraph 1 No. 1 VwZG).
  • In the case of notification by mail delivery order , by registered letter with acknowledgment of receipt or by an attached acknowledgment of receipt , the administrative act is announced at the time noted on the document (postal delivery document, acknowledgment of receipt, acknowledgment of receipt).

If the addressee denies receipt of the administrative act, the authority must prove receipt.

literature

  • Application decree for the Tax Code 1977 (AEAO to § 122 AO), BStBl I 2000, 190, last amended in BStBl I 2011, 24;
  • Fritz Gräber: FGO. 7th edition. Munich 2010.
  • Armin Pahlke, Ulrich Koenig: Tax Code. 2nd Edition. Munich 2009, § 122 AO.
  • Jürgen Schmidt-Troje, Heide Schaumburg: The tax legal protection. 3rd edition, Cologne 2008, I margin no. 70 = p. 20.
  • Klaus Tipke , Heinrich Wilhelm Kruse : Tax Code - Tax Court Code. November 2012, § 122 AO and VwZG.

Individual evidence

  1. ↑ Announcement of an administrative act . rechtslexikon.net, accessed on June 5, 2018.
  2. ↑ In tax law cf. BFH, judgment of July 8, 1998 - IR 17/96 - BFH / NV 1999, 242.