As the highest national court, the Federal Constitutional Court also decides on tax disputes. The constitutional complaint is one way to obtain the decision of the Federal Constitutional Court. We explain how the constitutional complaint works, what you have to pay attention to and how the constitutional complaint differs from the procedure, the submission to the Federal Constitutional Court.

The Federal Constitutional Court is the highest German court and can therefore also decide on tax disputes. It is the third state authority alongside the parliament and the government. Therefore, the Federal Constitutional Court has a very special position. Article 94 of the Constitution stipulates that such a Federal Constitutional Court must exist. It also regulates how it is organised.

Article 93 GG allocates different tasks to the Federal Constitutional Court. In tax disputes, on the one hand, the constitutional complaint is admissible, for which the Federal Constitutional Court is competent under Article 93 no. 4a GG in conjunction with § 94 paragraph 2 BVerfGG. It has a different quality than the remedies addressed to the specialised courts, since the specialised courts are attributed the judiciary power. This is particularly evident in a different test scale and a different test intensity.

On the other hand, a tax law can also be reviewed by means of concrete standards control. The latter can be brought on the basis of orders for reference by the tax courts. The reason for this is that the standard control procedure does not have to be operated by the taxpayer and he therefore does not bear any legal costs for it. Consequently, the standard control procedure is opened by a decision of a tax court or the Bundesfinanzhof (BFH). For this, the court must assume that the taxpayer is violated by an unconstitutional tax law in its principle of equality under Article 3 GG or in its property right under Article 14 GG and this has had an unlawful tax ruling.

Every citizen may independently, i.e. without representation by a lawyer, submit the constitutional complaint in writing to the Federal Constitutional Court. You don’t have to sign the constitutional complaint, but you should. Otherwise, the Federal Constitutional Court first checks in case of doubt whether the document was sent with knowledge and will. You can withdraw the constitutional complaint until the conclusion of the procedure. The Federal Constitutional Court disregards the withdrawal only if the legal question to be clarified has general significance.

The constitutional complaint is free of charge, but in order to avoid overburdening the courts with incidentalities, there is a fee that can be imposed up to an amount of € 2,600 if the constitutional complaint constitutes abuse within the meaning of Article 41 (2) GG. However, this must be returned if the constitutional complaint is justified. The constitutional complaint shall be filed and reasoned within one month of service of the complete judgment.

The complainant must also justify the constitutional complaint in writing. In the context of the justification, he must present to the Federal Constitutional Court a factually and legally as comprehensively as possible. However, the Federal Constitutional Court places high demands on a sufficiently conclusive and substantiated assertion by the complainant. For this purpose, the complainant must describe and define the claimed fundamental right in detail. In addition, he must also state why the interpretation of the fundamental right shows that he enjoys its protection in the specific situation. He must also provide any evidence. Moreover, the Federal Constitutional Court interprets complaints submitted in accordance with the principle of legal protection.

The taxpayer must first deny the simple legal remedy and sue before the competent specialist courts in all instances. Only then can he take action against the negative last-instance judgment.

However, a constitutional complaint can also be directed against a law. With regard to constitutional complaints against laws, the appellant must first seek reasonable other legal protection from the generally competent courts. Therefore, the principle of subsidiarity of the constitutional complaint applies in principle there too. However, it is no longer reasonable for the person concerned to have to violate the norm in question before the constitutional complaint is filed and thus have to accept sanctions.

The constitutional complaint requires an acceptance procedure, which is a mandatory condition for the constitutional complaint to be examined at all. Therefore, the examination of admissibility and well-foundedness only takes place after the constitutional complaint has been formally accepted. Theoretically, the adoption procedure and the actual examination of the constitutional complaint must be separated. In practice, however, this cannot be maintained, since the appellant must have sufficiently explained the admissibility and substantiation of his request. Reasons for accepting the constitutional complaint are the fundamental constitutional significance or the serious disadvantage resulting from the refusal of the constitutional complaint.

The matter is of fundamental importance if the constitutional legal question cannot be answered directly from the Basic Law and has not yet been clarified by constitutional case law. However, the fundamental significance for the admission of an appeal before the Federal Finance Court and the like for admission before the Federal Constitutional Court must be clearly separated. Above all, the task of the Federal Constitutional Court and the efforts to discharge it must be taken into account.

The other reason for assumption requires that the refusal of the decision creates a special disadvantage for the appellant or that the violation of the fundamental right or of the right equivalent to fundamental rights has a special weight. This requires an existential concern of the appellant, which may result from the object of the contested decision or from the subsequent burden. This can result directly from the subject-matter of the contested decision or from the burden resulting from it.

As a result, however, it cannot be denied that the adoption procedure is very vague and is actually oriented towards the prospects of success of the constitutional complaint. As a result, the constitutional complaint should only be accepted for decision if it is likely to succeed.

The constitutional complaint is directed against a concrete state action, i.e. a certain act. This can be a law, a court judgment or an omission. In tax law, the complainant usually opposes an unlawful tax assessment, which must also mean a violation of fundamental rights. In the context of the constitutional complaint, the complainant must state that he himself is directly and presently violated in his fundamental right. Here, the complainant of a tax dispute regularly cites the general equality clause of Article 3 GG or an infringement of property within the meaning of Article 14 GG.

The Basic Law has basically attributed the case law to the specialised courts. They therefore examine any legal impairment. However, every erroneous court decision interferes with a fundamental right. However, the examination is basically attributed to the specialised courts. Only if further prerequisites are considered by the Federal Constitutional Court. The Federal Constitutional Court is therefore limited to violations of a particularly important nature or existential concern. However, impairments that do not meet these requirements can also be particularly significant for the citizen concerned. However, in these cases, further examination by the Federal Constitutional Court is out of the question. Therefore, the specialised courts must examine all legal violations relevant to the decision.

Before the Federal Constitutional Court, you can only be represented by a lawyer at the oral hearing pursuant to § 22 BVerfGG. This will happen in any case, unless the participants unanimously waive it. However, every citizen can file the constitutional complaint independently, i.e. without representation by a lawyer in writing.

The verdict of a successful constitutional complaint must show which norm of the Basic Law has been violated by which state measure. If the constitutional complaint is directed against a judgment, the Federal Constitutional Court annuls it. On the other hand, in the event of a successful constitutional complaint against a law, the Federal Constitutional Court declares the law null and void or incompatible with the Basic Law.

The declaration of invalidity of a law takes effect back into the past and makes the standard no longer applicable for the future. However, this does not apply to valid decisions. If a norm violates the principle of equality, the Federal Constitutional Court can declare it null and void. Thus, it leaves the legislator the room for manoeuvre to decide to burden or favor all or none.

On the other hand, a law incompatible with the Basic Law can continue to work for a transitional period. This possibility is exercised by the Federal Constitutional Court if the nullity of the law would lead to a state of affairs even further away from constitutional order than the continuation of the unconstitutional law. This is intended to meet the requirements of the public interest and in particular budget planning from a state and private point of view.

In addition, the Federal Constitutional Court sometimes upholds the law, but imposes on it a suspension of enforcement or a prohibition of application. However, the legislature must then immediately create a constitutional legal situation. Therefore, no new unlawful tax rulings can be issued from the delivery of the judgment. However, already announced tax notices remain provisionally, but may not be enforced.

In addition, the Federal Constitutional Court can also order the continuation of validity. Then unconstitutionally declared right continues for the future. The Federal Constitutional Court sometimes also gives precise dates. This statement is controversial, but currently represents the customs lists. The plaintiff should pay particular attention to this in the tax court process.

First of all, the decision of the Federal Constitutional Court has binding effect with regard to the Federal Constitutional Court. Consequently, all two Senates of the Federal Constitutional Court must adhere to the decision, even though only one has decided on the matter. Moreover, the other courts and the authorities are also bound by them from the date of the decision.

Only at the Federal Constitutional Court is it possible, however, that decisions may also be published with an indication of the voting ratio within the Senate and with a different vote, so-called special vote.

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