In external tax audits, including in the context of a company-related assessment (BNV), there can always be disagreements between tax office and tax consultant. With an actual understanding, for which there is no explicit legal basis, a binding agreement can be reached with regard to certain situations. Actual understanding is common practice and recognized by both administration and jurisprudence. What is disputed, however, is the concrete legal basis on which it is based.

1. The Investigation Principle of Section 88 AO

§ 88 AO regulates the so-called principle of investigation in taxation proceedings. The tax office has to determine the specific individual facts of its own motion (§ 88 (1) sentence 1 AO). It must take equal account of all circumstances for and against the taxable person. As far as discretionary decisions are to be made, the discretion is to be exercised equally (§ 5 AO). Comparable or identical situations must therefore also be treated identically in all cases if individual circumstances do not justify a different assessment.

The tax office determines the scope of the investigation itself. In addition to the uniformity of taxation, it should also respect the principles of economic efficiency. Here, in particular, the administrative economy, i.e. the cost-benefit ratio in administrative measures, plays a role.

In literature and jurisprudence, the actual understanding is regarded as an outflow of § 88 AO. It is regarded as a measure for the determination of the facts, but also serves to comply with the economic efficiency requirement standardized in § 88 (2) sentence 2 AO. In many cases, the tax office and taxpayers benefit equally from an early agreement on controversial points. Objections and, where appropriate, complaints would subsequently lead to considerable additional expenses and, where appropriate, negatively affect the reputation of the financial administration.

Explicitly excluded is the amount of the tax (§ 85 AO). No actual understanding may take place about them, since the substantive legal calculation bases (for example in § 32a EStG, § 12 UStG) are not at disposal. Here, however, equity decisions (§ 163 AO) in the determination, remission and revocation (§§ 227, 261 AO) in the collection proceedings are possible. A decision pursuant to § 163 AO is also made in the context of the assessment and explained in the tax assessment.

2. The procedure for the actual understanding in practice

Actual understanding is not subject to any specific legal provisions as a public contract between the state, represented by the tax office, and the taxpayer. In particular, procedural law plays only a limited role. In principle, all parties involved can decide for themselves whether to choose the means of actual understanding or reject a corresponding proposal from the “reciprocal”.

Relevant, however, is the uniformity of taxation within the meaning of § 88 (2) AO. It shall ensure that the principles of equal treatment of all taxable persons are respected even in the event of effective communication. In practice, the following aspects are therefore particularly important: