Actual communication
The Actual Understanding , abbreviated to tV , is an instrument for establishing legal peace and avoiding legal remedies in tax procedural law in order to limit the amount of work and time required to ascertain facts to an acceptable level.
The tV is relevant to practice. It is a judicial legal training because in tax law the comparisons customary in civil law are inadmissible. TV is aimed at determining the tax bases that have actually been applied and thus for tax assessment in accordance with the law. Legally, tV is classified as a contract under public law (literature) or as a regulation in good faith (BFH). In a broader sense, the tV also affects the obligation of those involved to cooperate and thus the area of tax compliance .
Content of tV and legal issues
The tV on the matter concerns periods that have already expired, so it has a retrospective effect. The requirements for the tV are specified in the BMF letter of July 30, 2008, BStBl I 2008, 831. According to this, a tV is only permissible a) if the facts cannot be determined, can only be determined with difficulty or only with considerable, unreasonable effort,
b) if it is approved by the responsible head of assessment and c) there is no obviously incorrect taxation.
TV on legal issues is generally not permitted, but it is permitted on estimates and evaluations. Interest is not difficult to calculate and therefore cannot be the subject of a tV.
Use case for estimates according to § 162 AO
In the case of additions, a procedurally sound solution is necessary. Procedural law can and should help to properly implement reasonable agreements in substantive law. This can be done through binding information, commitments, applications in accordance with § 172 Tax Code (AO) and by the tV.
Temporal authority to TV
A TV can be concluded during the field audit, in the objection procedure, in the public hearing and in an oral hearing.
Differentiation from binding information
The binding information only relates to future issues, while the tV only relates to issues that have occurred in the past.
Effectiveness of tV
A TV is not obviously incorrect if it stays within the range of estimates, i.e. if it concerns economically possible tax bases. It is necessary, but also sufficient, that there is a fact that is difficult to determine.
If the tV is effective, it binds the parties involved. Unilateral termination of the tV is not possible.
Dispensability of the tV with approval according to § 172 AO
In many cases, the binding effect also arises even though no responsible head of the assessment took part in the negotiation. If the taxpayer agrees in connection with a tV through his declaration that after the changes have been made, all appeals against the tax assessments should be settled, the tV can be implemented in procedural law regardless of the requirements of other amendment standards. If the taxpayer or his / her tax advisor agrees with the tax treatment proposed by the auditor, this may include approval of a change to the detriment of the taxpayer, even if the declaration is only made in the presence of the auditor (i.e. without the presence of the head of the assessment department) has been.
Swindled tV
A TV is not binding if it has been deceived. If the taxpayer knows that he has made sales of EUR 10,000 per month, the tV over an annual turnover of EUR 8,000 is obviously incorrect. This means that one of the three requirements for the binding effect of the tV is not met. Therefore, the FA can later find out z. B. implement requests for information in accordance with Section 173 AO by means of an amendment notice. The result would also be confirmed from § 172 AO, because the tax assessment due to the tV was fraudulently obtained through tax evasion due to incorrect tax declarations.
written form
Written form is not required for tV. The instructions of the administration to draw up the TV in writing are not binding on the courts. You can and must determine for yourself whether a TV has been closed and with what content. This means that the parties' will to be legally bound must be determined and checked. This is done by interviewing (written) witnesses and assessing the evidence.
Correct representation
Effective representation is always given if the subject area manager of the tax audit took part in the agreement. However, it is not necessary for the responsible head of the assessment department to personally participate. If the tax office is not represented by a head of the assessment, the tV is pending ineffective. An agreement is reached that can be approved. In doing so, it must always be ensured that the head of the field audit has not become legally responsible as a result of the audit order. This results from § 195 sentence 2 AO. If the tax authority responsible for taxation engages another tax authority with the external audit, the commissioned tax authority is responsible for the tax assessment. It can determine the tax on behalf of the competent tax authority and issue binding commitments (Sections 204 to 207). But that means nothing else than that there is now a case of the tax assessment and the SGL tax audit is also an SGL assessment. But with this he can effectively close the tV. That corresponds to the h. M. von Tipke / Kruse, § 195 AO with further references
Approval through appropriate implementation
Previously, the fiscal court jurisprudence affirmed a solution through the appropriate implementation. TV was approved by the appropriate assessment, cf. FG Hamburg in EFG 1992, 379. This is possible again today because the occasional conflicting case law has lost its business basis through the amendment of § 22 BpOSt. Today the approval by the official responsible for the assessment is possible. It is therefore not necessary for the responsible investment manager to implement it.
Binding effect of completing the main thing
If the tV takes place in objection or legal action and the parties then declare the main dispute to be settled, then finality takes effect. The tax office (the municipality, customs authority, etc.) is then obliged to implement its change commitment.
Objection to the appraisal
An objection to the tV is inadmissible as it is not an administrative act. An objection to the tax assessment issued according to the TV must be carefully considered. In the case of an assessment notice, it must be clarified internally in advance whether Section 158 AO has been refuted, how high the additional estimate is, what percentage of the declared sales it is and whether it is moderate. It is relevant whether there is an offsetting risk (other, so far not objected to deposits, wrongly applied input tax). Then a tV is a better solution.
Evil as a solvent in a dispute over tV
The legal remedies office has the means to remedy the situation if an objection is lodged despite TV. The examiner can and must refer to this fact in his statement on the opposition and can limit it to it.
Dispute in the lawsuit
It must first be checked whether there is a possibility of offsetting or whether a favorable amendment notice is ineffective, so that the higher debt is again in dispute. In addition, the court must check whether the tV is effective. If this is answered in the affirmative, the content of the TV itself cannot be checked again. It is an exclusion of objection. The court is bound by the tV, so - unlike an estimate without tV - it may not be replaced by its own estimate according to Replace Section 96 FGO.
Assessment as implementation
An effective agreement can also exist if the agreement has led to a tax assessment that includes the basis of the agreement through a corresponding implementation notice. Then an effective agreement is reached. The assessment can be carried out as usual. So there is no need for an extended right to sign or the final signing by a subject area manager / assessment.
Binding effect of tV in liability proceedings
If § 166 AO is fulfilled, the tV has a binding effect for the liability notices with the corresponding tax notices. Example: the association's new board of directors concludes a tV which results in considerable additional taxes. If the association is unable to pay this, the question arises as to whether this creates a liability against the previous association board that is covered by § 166 AO if these persons have caused the breach of duty. In legal terms, this is particularly relevant for sections 69, 71 AO for the managing director of the GmbH.
Binding effect of the tV on the scope of liability in liability proceedings
If the liability claim is difficult to determine, it is also possible that the debtor and the tax office agree on a liability amount. This agreement can take place in the liability review procedure, in the objection and also in the legal action against the notice of liability. In practice, such agreements are made as tV with the ancillary provisions of the payment deadline and the waiver of legal remedies.
Effect of tV on the tax advisor's obligation to recourse
A TV does not mean that the claim against the previous tax advisor due to an advisory error is no longer applicable, cf. BGH of October 22, 2009, IX ZR 237/06,; Janssen , approval of the Stpfl. during actual communication in the company audit, NWB 2010, 1994.
literature
- Heinz Mösbauer: External tax audit: (tax audit) - tax investigation - tax supervision . Oldenbourg Verlag, 2005, ISBN 3-486-57856-1 .
- Michael Brinkmann: Estimates in Tax Law p. 347 ff, 2nd edition. Erich Schmidt Verlag, Berlin 2012, ISBN 978-3-503-13851-7 .
- Roman Seer: Understandings in tax proceedings . Habil script. O. Schmidt, Cologne 1996, ISBN 3-504-22204-2 .
- Alexandra Mack: Accept penalties in tax proceedings in order to avoid criminal tax proceedings? In: Tax advice. Vol. 55 (2012), 3, pp. 116-118.
- Joachim English: Binding factual and legal agreements between the tax office and taxpayers. Dissertation. Bonn 2004, ISBN 3-89737-112-X .
- Heike Jochum: Basic questions of tax law . Mohr Siebeck, 2012, ISBN 978-3-16-152047-1 .
- Janssen: approval of the Stpfl. during actual communication in tax audit . NWB 2010, 1994.
- Judith Lockmann: Understanding between tax authorities and taxpayers: the “actual understanding”; Basics, requirements and consequences . Dissertation, Osnabrück 2012, also Kovac Verlag, Hamburg 2013.
- Pump: The threat of dissolution in the opposition proceedings - an antidote to unilateral improvement despite agreement in the final meeting . StBp 1997, 305.
Individual evidence
- ↑ a b BFH of August 3, 2005, I S1, 4/05, BFH / NV 2005, 1972
- ↑ cf. BMF letter of July 30, 2008, BStBl I 2008, 831
- ↑ Pump / Fittkau, Actual Understanding and Setting Interest, AO-StB 2004, 402
- ↑ Roland Höft, Estimation of Taxation Bases, SIS Verlag 2010, p. 241
- ↑ Heinz Mösbauer: External tax audit: (tax audit) - tax investigation - tax supervision . P. 223.
- ^ Basically negating this requirement: Tipke / Kruse, Item 24 before § 118 FGO, Lfg. 124 from October 2010
- ↑ See the comprehensive note on FG Rhineland-Palatinate from September 21, 2012, 3 K 2493710, EFG 2013, 186
- ↑ Pump: The threat of anger in the objection procedure - an antidote to unilateral improvement despite agreement in the final meeting. StBp 1997, 305.
