Binding information
The binding information is a German regulation in § 89 Fiscal Code (AO) on information in tax law , in particular the tax authority towards the taxpayer.
Basics
Scope, regulatory environment and development
In the case of laws as abstract, general regulations, it can remain unclear in individual cases how a standard is to be understood. To obtain planning security in individual cases that can tax authority an advance ruling granted. The binding information is a commitment regulation in general tax procedural law. In addition, there are binding customs tariff information (Art. 12 Customs Code ), wage tax information ( § 42e EStG ), the binding commitment after an external audit ( §§ 204 ff. AO) and the advance notice of transfer prices regulated in administrative regulations. The binding information precedes the actual taxation process. This results in the following timing: 1. Planning considerations by the taxpayer 2. Application for approval and granting of approval 3. Realization of the facts 4. Taxation procedure (determination or determination by tax assessment)
A general regulation did not exist for a long time, but was recognized by the jurisprudence and the tax authorities. As part of the Federalism Reform Act, a legal regulation was created in Section 89 (2) AO on the possibility of obtaining binding information in the taxation procedure. According to Section 89 (2) sentence 1 AO, the tax offices and the Federal Central Tax Office can provide binding information on the tax assessment of precisely defined, as yet unrealized issues if there is a particular interest in this with regard to the significant tax effects.
On the term "binding information"
Many similar tax regulations use the term "binding information", although the term "assurance" is more precise in administrative terminology (see Section 38 VwVfG ). The latter describes better that the decisive function is the authority's commitment to commit (declaration of intent) and not mere information (declaration of knowledge).
Constitutional references
The binding information is closely linked to the constitutional principle of the protection of legitimate expectations. Among other things, this is intended to make government action predictable and thereby convey a claim to planability, which the tax authorities fulfill with binding information.
Application and grant
The application and granting requirements result from § 89 Abs. 2 AO as well as the tax information regulation (StAuskV). Further administrative instructions can be found in the application decree for the tax code.
Application requirements
The information must be requested for the applicant's own tax matters or a case of Section 1 (2) or (3) StAuskV is present. The applicant must be identified precisely (cf. § 1 StAuskV). The information must relate to a specific future issue . Binding information is therefore not permitted to clarify abstract legal questions, mere factual uncertainties ("actual understanding") or to legally assess facts that have already been realized. It is disputed whether binding information on alternative circumstances is permissible. The applicant must have a particular interest in the information and demonstrate it. In essence, a legal uncertainty with considerable tax implications in the specific individual case must be presented here. The application must be submitted in writing to the responsible tax authority and contain all information and further explanations according to § 1 StAuskV.
Grant
The issuing of the binding information is at the discretion of the tax authority. The information must be given by the factually and locally responsible tax authority. In special cases, the Federal Central Tax Office , in most cases the local tax office, is responsible. The information is given in writing. It should be issued within six months. The tax authority can either reject the application ("rejected commitment"), follow the legal opinion of the applicant ("positive promise") or deviate from his legal opinion in whole or in part ("negative promise").
Effects
The binding information is an administrative act and causes a one-sided binding of the tax authority: If the applicant realizes the facts as described, then the tax authority must implement the promised legal opinion in the tax assessment . In principle, illegal information is also effective as an administrative act ( § 124 AO), provided it is not void. In addition to the grounds for invalidity in Section 125 AO, Section 2 (1) sentence 2 StAuskV regulates that illegal information to the detriment of the taxpayer is always void.
In terms of scope , a distinction must be made between personal, factual, temporal and procedural obligations: The binding information is only binding between the tax authority and the applicant ( Section 2 (1) sentence 1 StAuskV, Section 124 (1) AO). From a factual point of view, the information is only binding if the facts presented and realized ( clausula rebus sic stantibus ) and the legal situation at the time of issue and realization ( clausula legibus sic stantibus ) are identical . The binding information is basically unlimited in time, but the tax authorities can add a time limit. In terms of procedural law, the binding information is only binding for subsequent tax assessments.
As with other administrative acts, the validity is limited by correction regulations: In addition to a correction in accordance with § 129 to § 131 AO, § 2 Paragraph 3 StAuskV regulates extended correction options for illegal favorable information.
Fee obligation
Binding information is subject to a fee in accordance with § 89 Paragraphs 3 to 5 AO (acceptance fee). The fee applies to both the processing of the application ( processing fee ) and the provision of information (issuing fee ). With a judgment of March 30, 2011, the Federal Fiscal Court decided that the calculation of fees for binding information is not unconstitutional.
See also
literature
- Julian Horst: The binding information according to § 89 Tax Code. Shaker Verlag , Aachen 2010, ISBN 978-3-8322-8893-8 .
- Beatrice Dalichau: Information and commitments from the tax authorities . Erich Schmidt Verlag, Berlin 2003, ISBN 3-503-06360-9 .
- Gerd Mayer: The commitment according to the tax code 1977. Duncker & Humblot, Berlin 1977, ISBN 3-428-07190-5 .
Individual evidence
- ↑ last BMF letter of December 29, 2003- 3 - IV A 4 - S 0430 - 7/03: Information with binding effect in good faith (binding information) ( Memento of the original of July 4, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. PDF.
- ^ BFH judgment of March 30, 2011 , Az.IR 61/10, full text.
