Against tax court decisions that are neither judgments nor court decisions, the parties and otherwise affected are entitled to the complaint according to § 128 FGO. We explain their eligibility requirements and what you need to pay attention to to win.

The appeal is for legal protection against such decisions of the tax court, which are not judgments or court decisions. It is therefore intended to provide the plaintiff with effective legal protection in the financial process even against such measures that are not attackable with the revision.

Upon filing of the appeal, the tax court shall temporarily suspend the execution of the decision pursuant to § 131 (1) FGO. If the tax court considers the complaint to be justified, it must remedy the complaint, otherwise the complaint must be submitted immediately to the Bundesfinanzhof (BFH) in accordance with § 132 FGO. Therefore, the complaint has a devolutive effect (justification of the jurisdiction of the higher court) and a suspensive effect (prevention of the occurrence of legal force), so that the complaint is an appeal.

Against tax court decisions that are neither judgments nor court decisions, the parties and otherwise affected persons are entitled to the complaint according to § 128 FGO. Therefore, the appeal is primarily allowed against decisions and orders of the court. Accordingly, the appeal must be directed, for example, against the refusal of access to the file, a subpoena or refusal of access to the file and against the termination of proceedings which are not based on the withdrawal of the action. The appeal must therefore be directed against decisions which do not promote the procedure but restrict the legal protection of the taxable person. Such decisions are therefore admissible to appeal, since they significantly affect effective legal protection.

It must be a decision of the tax court, the chairman or the rapporteur. It is also necessary that the decision of the court has already been given. There is therefore no inaction complaint, aimed at the fact that the court should finally decide.

Appeals are authorized by everyone involved in the main proceedings, i.e. the plaintiff, defendant, summoned or even the acceded authority. Those affected are also entitled to complain. These can be, for example, persons who have requested their accompanying summons, witnesses or experts. However, these people must actually be complained.

However, there are certain decisions against which the appeal would actually be allowed, but which are declared not contestable by law according to § 128 (2) FGO. For reasons of litigation economics, the legislator has classified these as of no particular importance for ordinary proceedings to be concluded in a short time. This includes, for example, decisions to reject requests for evidence. Even against decisions in interim legal protection, the complaint according to § 128 paragraph 3 FGO is only admissible if it is expressly permitted in the decision of the tax court. The latter is based in particular on the fact that the court still decides on the substance of the matter anyway.

According to § 124 paragraph 2 FGO, the non-appealability of these decisions has the consequence that they are also withdrawn from review in a possible revision. Only if a particularly serious wrong was justified by a particularly serious procedural deficiency, this can be examined by the BFH on the basis of a refusal appeal to be submitted. This applies, for example, if a rejected deadline has led to a violation of the legal hearing.

The complaint is in accordance with § 129 para. 1 FGO to the tax court or to the record of the certificate officer of the office within two weeks after notification of the decision. The time limit shall therefore begin with the delivery or, if it has not taken place, with the notification of the contested decision.

Before the BFH, each participant must also be represented by a person within the meaning of § 3 no. 1 StBerG. These include tax consultants, lawyers or auditors. This also applies to deposits. The appeal by another person makes the appeal inadmissible, but it can be subsequently approved by a person capable of postulation. However, this approval can only take place within the appeal period.

In the case of a formal complaint filed within the deadline, the complaint can also be extended after the deadline has expired. However, there is no obligation to state reasons. The lack of justification therefore does not lead to inadmissibility if the appellant’s request is sufficiently recognizable. Therefore, the complaint must have a minimum content. It must clearly identify the contested decision and indicate its request. As a rule, however, it can be assumed that the appellant pursues his request concretized in the first instance.

The tax court must remedy the complaint if it considers it justified. The person who issued the contested decision shall have jurisdiction to examine the merits. The decision of the appeal may be appealed again by the other party to the proceedings. If the tax court does not remedy the complaint or only partially, the decision must be submitted to the BFH. This also applies if it classifies the complaint as inadmissible. With the submission to the BFH, any remedy option of the tax court is eliminated, so that the decision now lies with the BFH.

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