Gross negligence (173 AO)

from Wikipedia, the free encyclopedia
QA law

This article was entered in the editorial right for improvement due to formal or factual deficiencies in quality assurance . This is done in order to bring the quality of articles from the subject area law to an acceptable level. Help to eliminate the shortcomings in this article and take part in the discussion ! ( + )

The term " gross negligence " has its special meaning for the tax law of Germany in the repeal or amendment of tax assessments due to new facts or evidence within the meaning of § 173 Tax Code (AO) .

This term is not precisely defined in the tax code, but is explained in detail in the application decree for the tax code (AEAO to § 173 AO No. 5–6). According to § 173 Abs. 1 AO, the tax assessments are to be revoked or changed up to the end of the assessment period even after the expiry of the objection period (within the meaning of § 355 AO) if new facts or evidence subsequently become known which

  • lead to a higher tax (correction of the tax assessment to the disadvantage of the taxpayer within the meaning of Section 173 (1) No. 1 AO)
  • lead to a low tax (correction of the tax assessment in favor of the taxpayer within the meaning of § 173 para. 1 no. 2 sentence 1 AO) and the taxpayer is not grossly at fault for subsequent disclosure.

The existence of gross negligence when correcting the tax assessment in favor of the taxpayer is therefore an additional and a decisive feature of the facts . This is to prevent the taxpayer from arbitrarily presenting new facts in his favor after the final assessment .

In case of doubt, the burden of determination for gross negligence lies with the taxpayer.

Definition of gross negligence

"Gross negligence means willful intent or gross negligence."

Intent

Resolution means acting with knowledge and willingness. The taxpayer knows his duty to cooperate and to give a declaration and deliberately violates this with the will that certain tax-relevant facts are not taken into account. This case occurs, for example, if the taxpayer withholds tax-reducing facts, as these are related to the tax-increasing facts. The conditional intent is sufficient. H. that the taxpayer approves the violation of the duty to cooperate.

Gross negligence

Gross negligence is present if the taxpayer, when filing the tax return, " violates the due diligence to which he is obliged and capable according to his personal abilities to an unusually high degree and in an inexcusable manner." This is the case, for example, if the taxpayer forgets to report tax- relevant facts to the tax office .

The correction of the tax assessment according to § 173 Abs. 1 Nr. 2 S. 1 AO is, however, prohibited in the presence of “gross, not slight negligence”. The legislature is in determining gross negligence by a "subjective fault" from. This means that the severity of the breach of duty of care is determined based on the circumstances and circumstances of the individual case as well as the individual knowledge and skills of the individual taxpayer.

It should be noted that for the jurist who work prefigured in the field of tax law or purpose (eg. As tax consultant , financial advisor , taxman , but not lawyers or lawyers ) higher demands must be made as to the taxpayer for which the tax is an annoying consequence of their activity. An obvious mistake (for example, mere errors, mix-ups, unintentional spelling mistakes) is not regarded as gross negligence.

Examples and first example cases

Examples of gross negligence

  • the taxpayer does not submit a tax return despite being requested to do so;
  • the taxpayer disregards explicit instructions from the tax authorities in forms , leaflets, etc .;
  • the taxpayer violates the principles of proper bookkeeping ;
  • the taxpayer ignores a question expressly asked in a tax return form from a very specific issue .

case 1

The taxpayer Meier finds 6 months after receiving his tax assessment for 2012 that he overlooked in his income tax declaration 2012 to state his church tax as special expenses. He applies to the tax office to change the tax assessment.

After one month (objection period within the meaning of § 355 AO ), the tax assessment has become final. This means that the taxpayer can neither file an objection according to § 347 AO nor submit an application for a simple change (according to § 172 para. 1 no. 2a 2nd half-sentence AO ). Thus, in this case, only a correction of the tax assessment would be possible in accordance with Section 173 (1) No. 2 sentence 1 AO . However, this is not permitted because the taxpayer is grossly at fault (gross negligence). The change of the tax assessment is excluded.

Case 2

A car mechanic did not claim any expenses for the office in his tax return . After a solid assessment, he first sought recognition of the costs for the study.

The tax office rejected the change according to §173 Abs. 1 Nr. 2 S. 1 AO "because of gross negligence". The BFH ruled that the taxpayer did not need to know that office costs could be deducted from tax. There was no explicit reference to the study in the declaration forms at that time.

Irrelevance of gross negligence i. S. d. Section 173 Paragraph 1 No. 2 Sentence 2 AO

The existence of gross negligence on the part of the taxpayer is irrelevant according to Section 173 (1) No. 2 Sentence 2 AO if the facts or evidence that lead to a lower tax are "directly or indirectly related to facts or evidence" which lead to a higher tax.

This means that the tax-increasing process is inconceivable without the tax-reducing process.

If, for example, after determining previously unknown and not recorded operating income, the operating expenses associated with this income are also taken into account. In this case, the tax-reducing facts can be taken into account in full, even if the taxpayer is grossly negligent in the subsequent disclosure of the tax-relevant facts.

Gross negligence - act by several people

If more than one person is required to provide a declaration and to cooperate, the tax assessment according to Section 173 Paragraph 1 No. 2 Sentence 1 AO may not be revoked and changed if one of these persons is grossly at fault in the subsequent disclosure of the tax-relevant facts. This is the case, for example, when several managing directors represent a corporation externally.

Case 3

A and B are managing directors of X- GmbH . They explain business expenses retrospectively . A is not grossly at fault for this, while B initially did not explain this due to gross negligence.

The grossly culpable behavior of the B is sufficient to refuse to change the tax assessment according to § 173 Abs 1 Nr. 2 S. 1 AO.

Allocation in the case of joint assessment

In the joint assessment , the gross negligence of a spouse is attributed to other than their own.

Attribution in the case of authorized representatives or auxiliary persons

In addition, the taxpayer has the gross negligence of the authorized representative or auxiliary person (in each case within the meaning of § 80 AO , for example his tax advisor) as his own culpability. It is the taxpayer's responsibility to provide his tax advisor with all tax-related documents, submit all declarations and registrations on time and sign the tax return prepared by the tax advisor only after careful review. If the tax return prepared by the tax advisor is signed by the taxpayer and tax-relevant facts are overlooked or forgotten, the taxpayer can no longer change this tax return according to its validity in his favor according to § 173 para. 1 no. 2 sentence 1 AO.

Case 4

Taxpayer S spent EUR 5,000 on specialist literature and training courses in the 2011 assessment period . He had his tax return drawn up by his tax advisor B. The so far always reliable B has forgotten to enter the training costs in the tax assessment. The tax return he had prepared was presented to him for review and signature. S signed the tax return without looking through it, as he completely trusted his tax advisor. After the tax assessment had become incontestable , S. noticed when looking through the documents that the training costs were not even entered in his 2011 tax return. S was angry and applied to the tax office for a change in the tax assessment due to new facts within the meaning of Section 173 (1) No. 2 sentence 1 AO. His reason was that it was not he, but his sloppy tax advisor B who was to blame for the fact that the training costs were not entered in the tax return.

The tax office rejected S's request for correction on the grounds that S violated his duty to cooperate by signing the tax return without carefully checking it. If the tax return had been carefully checked by him, he should have noticed that the training costs were not recorded. Thus, the taxpayer had to be responsible for the gross negligence of the tax advisor. The correction of the tax assessment according to § 173 Abs. 1 Nr. 2 S. 1 AO is excluded.

It should be noted, however, that the tax advisor who employs employees to prepare the tax return bears a duty of care with regard to the selection of his employees and leaves the tax return in its complete form to the taxpayer for examination and signature.

Burden of determination

In case of doubt, the burden of determination for the lack of gross negligence lies with the taxpayer, as he seeks taxation that is more favorable for him .

Bibliography

bibliography

Ax, R. / Große, T. / Melchior, J. / Lotz, A. / Ziegler, C. (2010): Tax Code and Tax Court Code, 20th edition, Stuttgart, 2010.

Bornhofer, M. / Bornhofer, MC (2014): Steuerlehre 2, 35th edition, Wiesbaden, 2014.

Eisele, D. / Seßinghaus, C. / Walkenhorst, R. (2009): Tax Code / Tax Court Code. Value added tax. Inheritance tax, 11th edition, Herne, 2009.

Lammerding, J. / Scheel, T. / Brehm, B. (2012): Tax Code. Tax court regulations, 16th edition, Achim, 2012.

Ratjen, C. / Sager, S. / Schimpf, N. (2012): Tax Code and Tax Court Code, Weil im Schönbuch, 2012.

Springer Fachmedien Wiesbaden (Ed.) (2013): Compact Lexicon Taxation and Auditing, Wiesbaden, 2013.

Directory of laws, regulations and accounting standards

  • AEAO (2014): Application decree to the tax code of January 31, 2014, BStBl I p. 290, BMF IV A 4 - S 0062/14/10002; DOK 2014/0108334 (see also BMF letter of January 31, 2014 ).
  • BFH of February 3, 1983, BStBl II 1983, 324.
  • BFH of March 28, 1985, Federal Tax Gazette II 1986, 120.
  • BFH of August 26, 1987-IR 144/86-BStBl II 1988.
  • BHF of May 18, 1988 BStBl II 1988, 713.
  • BFH of 10 August 1988, IX R 219/84, BStBl II 1989, 131.
  • BFH of May 22, 1992, BStBl II 1993, 80.
  • BFH of July 24, 1996, BStBl II 1997, 115.
  • BFH of February 28, 2001 BFH / NV 2001, 1011.
  • Bundesfinanzhof (BFH), judgment of 16 May 2013, Az. R III 12/12, on bundesfinanzhof.de (provision of a compressed "Elster" income tax return: gross negligence of the tax advisor).

Individual evidence

  1. ↑ See Bornhofer, M./Bornhofer MC (2014), p. 92.
  2. ↑ See Ax, R. / Große, T. / Melchior, J. / Lotz, A. / Ziegler, C. (2010), p. 487, margin no. 2061.
  3. ↑ Springer Fachmedien Wiesbaden (Ed.) (2013), p. 221.
  4. ↑ See Ratjen, C. / Sager, S. / Schimpf, N. (2012), p. 256.
  5. ↑ BFH of February 3, 1983, BStBl II 1983, 324; BFH of May 22, 2006, BStBl II 2006, 806
  6. ↑ See BFH, September 16, 2004 BStl II 1988, 109.
  7. ↑ See Ax, R. / Große, T. / Melchior, J. / Lotz, A. / Ziegler, C. (2010), p. 487, margin no. 2064.
  8. ↑ See Ratjen, C. / Sager, S. / Schimpf, N. (2012), p. 256.
  9. ↑ See Lammerding, J. / Scheel, T. / Brehm, B. (2012), p. 434; BHF of May 18, 1988 BStBl II 1988, 713.
  10. ↑ See BFH of August 10, 1988, IX R 219/84, BStBl II 1989, 131.
  11. ↑ See AEAO on § 173 AO p. 114, No. 5.1.2 ff.
  12. ↑ See Bornhofer, M./Bornhofer M. C. (2014), p. 93.
  13. ↑ See BFH of May 22, 1992, BStBl II 1993, 80.
  14. ↑ BFH of March 28, 1985, BStBl II 1986, 120.
  15. ↑ See Ax, R. / Große, T. / Melchior, J. / Lotz, A. / Ziegler, C. (2010), p. 489, margin no. 2067.
  16. ↑ See BFH of July 24, 1996, BStBl II 1997, 115.
  17. ↑ See BFH of February 3, 1983, BStBl II 1983, 324.
  18. ↑ BFH of August 26, 1987-IR 144/86-BStBl II 1988, p. 109; BFH of May 16, 2013, R III 12/12.
  19. ↑ Cf. AEAO to 173 AO p. 114, no. 5.1.