Requests for reference
A request for submission or request for submission is a request from the tax authority in accordance with Section 97 of the Tax Code , in which it asks those involved (taxpayers and third parties) in the taxation procedure to submit documents (also information) about a tax-relevant matter. A request for submission is an administrative act within the meaning of § 118 AO. The documents submitted and information provided in response to the request also constitute evidence within the meaning of § 92 AO. A request for submission can be combined with a request for information .
General
| Requests for reference | |
|---|---|
| legal basis | Section 97 AO |
| Position in law | general participation regulations |
| shape | informal |
| Administrative act is AO | Administrative act within the meaning of § 118 AO |
| independence | Independent administrative act |
| Objection | Can be challenged according to § 347 Paragraph 1 No. 1 AO |
| Enforceability | enforceable and enforceable |
Procedure
A certificate is a classic piece of evidence for the tax authority within the meaning of § 92 AO. Thus, the tax authority can, by virtue of legal authorization (§ 97 AO), demand the submission of documents, in particular business books, private law contracts but also savings books, account statements and receipts.
With the request for submission, the legislature has provided the tax authorities with an investigation option that supports the implementation of the taxation procedure. The request for submission represents at the same time an investigative measure by the tax authority and an obligation to cooperate on the part of the person requested to submit a submission. The legislature has not codified a special formal requirement for the submission request. This means that requests for reference can be made informally (i.e. also orally).
The following principle applies: A request for information must be made before a request for reference . This principle is only broken for tax credits. In this case, the tax authorities may directly request the submission of documents, since, according to constant tax court case law, the taxpayer in any case bears the burden of proof in the case of tax breaks.
Although the principle of proportionality is in Section 97 - unlike, for example, not codified in Section 93 AO - the tax authority must also observe this here, i.e. H. Here too, the tax authority has to use the simplest possible method of investigation (purpose-means ratio: necessary, reasonable and achievable?) and thus make the least possible interference with the taxpayer's sphere, taking into account the circumstances in each individual case.
However, the submission in the context of a request for submission should only be requested from the party involved if
- the party has not provided information
- the information was insufficient (and)
- if there were concerns about their correctness.
Power of attorney by commissioning the third party
Placing an order with the bank to issue the required account statements is a common alternative.
Behavior in case of refusal
It is common for the managing director or the board of directors to B. to summon the bank as a witness if the submission of account statements is delayed or refused. Usually a quick remedy is then provided.
particularities
In accordance with Section 119 (1) AO, the content of the request for reference must be sufficiently determined. This sufficient certainty in terms of content, laid down by simple law in § 119 AO, results from the certainty requirement which is the content of the rule of law . If the request for reference lacks sufficient clarity in terms of content, it suffers from a particularly serious error with the result that the request for reference is void according to Section 125 (1) AO and thus ineffective according to Section 124 (3) AO.
As an administrative act within the meaning of § 118 AO is against the request for submission as a legal remedy acc. Section 347 (1) no. 1 AO, the objection is permitted. If the tax authority rejects this, the tax court can be called upon. However, it should be noted that the tax authority is authorized to execute requests for submission and, if necessary, to enforce them by means of coercion (e.g. in the form of setting a penalty payment).
Requests for information and requests for designation are to be strictly distinguished from requests for reference . In principle, both requests and designation requests pursue the same purpose, i. H. to provide the tax authority with the necessary evidence, however, it should be noted that due to different legal norms (§§ 93, 97 or 160 AO) these inquiries of the tax authority are also (partly) different requirements and legal consequences.
bibliography
- Rolf Ax, Thomas Große, Jürgen Melchior: Tax Code and Tax Court Code. 19th edition. Schäffer-Poeschel Verlag , Stuttgart 2010, ISBN 978-3-7910-2592-6 . (Blue series finance and taxes. Volume 4).
- Jo Lammerding: Tax Code and Tax Court Code. In: German Tax Union (Ed.): 13th edition. Erich Fleischer Verlag, Achim 1997, ISBN 3-8168-1025-X (Green series of tax law for study and practice. Volume 2).
