Late payment surcharge (Germany)
In German law, a late surcharge is an additional tax benefit i. S. d. Section 3 (4 ) AO , which can be set against anyone who inexcusably fails to submit a required tax return or does not submit it on time. The legal basis is § 152 AO. The purpose of the late award is given in his capacity as a special financial pressure means of financial management with a preventive nature to ensure a speedy and proper assessment procedure . If the prerequisites for setting a late surcharge are met, the tax authorities have a discretion as to whether and, if so, to what extent they set a late surcharge, whereby certain maximum limits must be observed.
The late payment surcharge for not submitting the tax return on time must be differentiated from the late payment surcharge , which is levied if the tax is not paid on time, and the tax interest , which depends on the length of time since the tax was incurred.
Requirements for the assessment
A late surcharge can be set under the following conditions:
- Failure to submit or late submission of the tax return:
- the obligation or the deadline for submitting the tax return are specified by law, but can also be set or extended in individual cases by an administrative act. Only if there is an obligation to submit the declaration and both the statutory and the individually specified deadline has expired, the declaration was not made or made late.
- Inexcusability of delay:
- A late surcharge may not be set if the missing or late submission of the tax return appears excusable (Section 152 (1) sentence 2 AO). The question of when a failure appears excusable can only be decided on a case-by-case basis, taking all circumstances into account. However, an inexcusable omission is usually assumed if the tax returns have repeatedly not been submitted or not submitted on time or the deadlines approved by the tax authorities have not been met.
- The taxpayer must allow the negligence of a legal representative or a vicarious agent to be credited (Section 152 (1) sentence 3 AO). Agents are those whom the taxpayer uses to prepare and submit the tax return, i.e. in particular tax advisors .
- The taxpayer or his representative must explain and substantiate the reasons that make the omission appear excusable.
- Resolution discretion of the tax authority:
- When deciding whether to set a late surcharge, the tax authority has to exercise its discretion (resolution discretion) in accordance with its duty (§ 5 AO) and to justify it. First of all, the purpose of the late surcharge, the type and extent of the fault, but also the duration and possibly the frequency of the delay must be taken into account.
- In the case of advance notifications, there is no error of judgment if the tax authority sets a late fee even if the submission is only briefly late.
Amount of the late surcharge
The amount of the late surcharge ranges between a maximum limit and the relevant discretionary amount of the authority:
The late payment surcharge was not allowed to exceed 10% of the fixed tax or the fixed measurement amount and 25,000 euros (Section 152 (2) sentence 1 AO). The calculation is based on the annual tax amount, not the final payment amount. This rule last applied for the 2017 tax year.
When limiting the late surcharge downwards, the tax authorities have a selection process. Here too, in addition to the purpose of the provision, the duration and frequency of exceeding the deadline must be addressed. In addition, however, the amount of the payment claim, the advantages derived from the late submission of the tax return as well as the fault and the economic capacity of the taxpayer must also be taken into account (Section 152 (2) sentence 2 AO). Depending on the circumstances of the individual case, the following applies in principle:
- the amount of the late surcharge can significantly exceed the benefit gained from the late submission of the declaration
- because the amount of the surcharge is not limited by the extent of the advantage drawn, it does not matter whether and in what amount an interest advantage was achieved
- the assessment is also possible if there has been a tax refund due to offsetting amounts
- It is discretionary justice in severe cases, the late charge as an appropriate sanction to be set
fixing
The determination is made by administrative act - in principle together with the tax assessment , the tax assessment assessment or another basic assessment (§ 152 Abs. 3 und 4 AO). In the case of late filing of a tax return, the late payment surcharge will necessarily be set separately.
Appeal and Amendment
Objections can be lodged against the determination of the late surcharge and an application for suspension of execution can be made.
If the relevant tax assessment changes in favor of the taxpayer after the late surcharge notice cannot be contested, the result is not automatically a change in the late surcharge due to the lack of a formal connection between the tax assessment and the late surcharge notice (because the relevant tax assessment is not a basic notice). In this regard, it is necessary to apply for a reduction or cancellation of the late surcharge in accordance with the general amendment regulations (§ 130 AO, § 131 AO).
A decision made by the tax authorities with regard to this application to leave the previously determined late surcharge unchanged is an administrative act, which in turn can be challenged with an objection.
New regulation from 2018
The law on the modernization of the taxation procedure introduces the following changes with effect for tax returns that must be submitted after December 31, 2018:
- An automatic setting of late surcharges should not be considered if the tax is set at zero euros or a negative amount or if there are no additional payments.
- The late surcharge is 0.25% of the stipulated additional tax payments for each month or part thereof, but at least 25 euros per month; the maximum amount remains at a total of 25,000 euros. Delay surcharges are levied from the 15th month, e.g. B. for the tax return for 2018 from March 2020.
- In the case of pension recipients who assumed that they did not have to submit any tax returns, the late payment surcharge will only be calculated from the month following the return deadline specified in the request.
Footnotes
- ↑ BGBl. 2016 I p. 1679
- ↑ Delay surcharge § 152 AO - Tax office & additional tax benefits. Retrieved January 8, 2019 .
