Non-application decree

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A non-application decree published by the Federal Ministry of Finance (BMF) instructs the tax authorities to only take into account the principles of a judgment by the Federal Finance Court (BFH) in the specifically decided matter and not to apply them analogously to comparable cases.

Judgment without binding effect

In principle, court decisions are only effective inter partes , i.e. H. between the parties to the dispute . They bind the court and the parties to the dispute, as far as it is the same subject matter. Parallel cases are not recorded, nor are third parties who were not involved in the procedure. Even higher court decisions have no binding effect in later, similar proceedings. Although lower courts and authorities generally orient themselves towards decisions made by the highest or higher courts, they are not legally obliged to do so. Only the decisions of the Federal Constitutional Court (see § 31 BVerfGG ) are legally binding beyond the decided case .

As a result, the administration is (also) not legally obliged to follow judicial decisions beyond their legal force in parallel cases. It is true that the administration - for reasons of equality of application of the law - may not arbitrarily deviate from its other legal practice in individual cases. In parallel cases, however, it may disregard a court decision if it expressly does not want to justify such a legal practice and such a practice does not yet exist.

Therefore, so-called non-application decrees of the administration - especially common in the area of financial management - that the application of a (maximum) judicial decision on the case decided also foreclose on the same cases which are, constitutional law can not be criticized, even if they are not new Support factual arguments. However, they are constitutional politically questioned because they undermine the authority of the judiciary, legal peace hamper and the legal certainty intended harm. The administration should therefore only resort to non-application decrees in exceptional cases.

The practice of non-application enactments in tax law is criticized from various sides, as it - according to the allegation - factually undermines the jurisdiction of the financial jurisdiction and fiscal reasons are likely to be decisive in many cases. In the years 1998–2003, a non-application decree was issued for around every sixtieth BFH judgment. Around 80% of these judgments were financially beneficial to the taxpayer.

Instructions to the administration

A so-called non-application decree is a letter from the Federal Ministry of Finance (BMF) that is published in the Federal Tax Gazette (BStBl.) As a general administrative regulation. It obliges the tax authorities to set a certain, at the same time in the BStBl published decision of the Federal Fiscal Court (BFH) - the principles contained therein - not to apply beyond the decided individual case.

This practice of financial administration is viewed very critically by tax consultants in particular , as the majority of BFH decisions are affected, the legal principles of which would have a beneficial effect on taxpayers. In addition to such arguments, however, weighty legal arguments are also cited from the judiciary, which relate to the rule of law and, in particular, the separation of powers .

In the ten years from 1971 to 1980, 4,464 in the BStBl. published BFH decisions 62, in the five years from 2000 to 2004 of 1,654 officially published decisions 28 were subject to a non-application decree. However, these figures are of limited informative value for the practical significance of these BMF letters, because a non-application decree regularly affects particularly important decisions of the Supreme Tax Court in which the legal opinion of the BMF is contradicted.

The BMF directs the implementation of federal laws and ordinances by the state finance authorities, among other things with so-called BMF letters, because the states contest a direct right of instruction by the states even when executing federal laws. One instrument for establishing nationwide uniformity in the application of the law is the publication of the BFH decisions in the Federal Tax Gazette, which the court itself has determined to be fundamentally significant. In contrast to the numerous other judgments published in specialist journals, these official publications mean that the legal principles of the decisions announced in this way, e.g. B. must be applied by the tax offices in all comparable cases. This cannot be taken for granted, because court decisions (if they are not Federal Constitutional Court decisions) only have an effect in specific individual cases and only between the parties who led the legal dispute themselves.

In order to provide further clarification to decisions of particular importance, the BMF officially publishes BFH decisions that fundamentally contradict its legal opinion and withdraws the instructional effect for the tax offices with a non-application decree. Such a non-application decree is coordinated between the highest tax authorities under the leadership of the BMF.

Constitutional issues

The Federal Government justifies its approach with the entitlement and obligation, which it considers to be based on Article 20 (3) of the Basic Law , to examine the general validity of the respective judgments. Fiscal reasons are by no means the motive for non-application orders. The validity of this argument is questioned by critics, who point out that there are practically only non-application decrees in tax law , but not in other areas of law. If the federal government derives an obligation from the Basic Law, it must comply with this in all areas of law.

The legal nature of these instructions and their withdrawal through a non-application decree is again a problematic point for constitutional reasons. The binding effect of the BMF letter for the state tax authorities is not based on an express legal basis. It follows an agreement between the Federal Ministry of Finance and State Finance Ministers of January 15, 1970. It had precursors to the federalization of the Reich Finance Administration in 1949 in individual federal states and in an agreement between the BFH and the Federal Ministry of Finance of October 15, 1955. The principles this procedure is also observed by tax courts.

In other areas of law than tax law and social law, the instrument of non-application decree is less common, but it can only be considered for the administrative application of public law standards.

The agreement between the highest tax court and the highest tax authorities and those between the federal and state tax authorities are intended to ensure that in cases of fundamental differences over the interpretation of tax laws, the tax authorities do not repeatedly go to the highest level with comparable cases. Rather, after a non-application decree has been issued, a new case should be brought before the BFH at the earliest opportunity in order to give it the opportunity to re-examine its legal opinion and that of the BMF once again and finally. The BMF then regularly joins these proceedings in order to present its legal position itself. If the BFH maintains its legal opinion, the non-application decree will be repealed. The implementation of these agreements corresponds to this until today.

However, the fundamental legal concerns of tax advisors and the judiciary have remained unresolved. So far, neither these arguments nor the basic position of the BMF that it is authorized to issue administrative instructions to the state finance authorities have been finally decided. At intervals, however, the parties in the Bundestag take the issue of non-application decree as an occasion for inquiries to the federal government. The questions and answers outline and deepen other aspects of the problem.

literature

  • Marc Desens : Binding of the financial administration to the case law. Conditions and limits for non-application enactments. Mohr Siebeck Tübingen 2010, ISBN 978-3-16-150560-7 .

For the similar problem of non-application laws, see:

  • Dietmar Völker, Marco Ardizzoni: Non-application laws in tax law that break case law - new questionable legislative practice. In: NJW . 2004, pp. 2413 to 2420.

Individual evidence

  1. ↑ Wilke, in: Isensee / Kirchhof HStR, Bd. V, 3rd edition, 2007, § 112 Rn. 53; Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92 para. 26th
  2. ↑ Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92 para. 28; for the controversial discussion on this see p. Lange NJW 2002, 3657; Leisner-Egensperger DÖV 2004, 774; Pezzer DStR 2005, 525; Horlemann DStR 2004, 1113; Voss DStR 2004, 441; Wilke in: Isensee / Kirchhof, HStR, Bd. V, 3rd edition, 2007, § 112 Rn. 53; for state practice s. BT-DRS. 15/4614
  3. ^ Instead of all with numerous references: Joachim Lang : Reaction of the tax administration to unpopular decisions of the Federal Fiscal Court, presentation at the German Judges' Day 1991, Steuer und Wirtschaft 1992, p. 14 ff; the judicial point of view fundamentally with Franz Klein, BFH case law - application and consideration by the financial administration, lecture at the German Tax Consultant Conference 1983, Deutsche Steuer-Zeitung 1984, p. 55 ff.
  4. ↑ Lang, p. 14
  5. ↑ Non-application decree - procedure of the non-application decree ( Memento of August 7, 2009 in the Internet Archive ). 2009 from bundesfinanzministerium.de, accessed on July 27, 2018
  6. ↑ z. B. Decree of the Hessian Minister of Finance of January 2, 1952, O 1153 / S 1216 - 1 - II / 1, excerpt quoted by Reinhard Hein, Provisional legal protection in the procedure for the reduction of income tax advance payments when participating in tax-privileged capital investments , operations -Berater 1980, p. 1099, 1101, fn. 18
  7. ↑ identical to the adoption of the finance minister of North Rhine-Westphalia of 7 January 1952 O 1153-11150 / VA, extract quotes in AO / FGO-hand output, Stollfuß-Verlag to § 4 AO; and Praktiker manual tax code, IDW-Verlag, Appendix 3
  8. ↑ BMF minutes of February 11, 1956, IV A / 1 - S 1229 - 92/55 II. Ang. - III B / 2 - S 1210 - 13/55, Betriebsberater 1956, p. 230.
  9. ↑ z. B. FG Baden-Württemberg, judgment of July 13, 1990, Az. IX K 206/85, Deutsche Steuer-Zeitung 1991, p. 347, 3rd principle.
  10. ↑ cf. Klein, p. 58
  11. ↑ Bundestag printed paper 14/6716 of July 20, 2001 (PDF; 49 kB)
  12. ↑ Bundestag printed matter non-application decrees in tax law. (PDF) January 3, 2005, accessed on August 21, 2011 (Bundesdrucksache 15/4614).