The revision to the Bundesfinanzhof is subject to approval. If, however, the appeal has not been admitted, the appellant is entitled to appeal against non-admission. We explain their requirements, the deadlines and how the Bundesfinanzhof decides.

In the case of a non-admission appeal, the non-admission of the appeal is contested in accordance with § 116 FGO. This is the only way to take action against the refusal of the appeal by the tax court. The aim of the non-admission complaint is therefore to convince BFH that the tax court did not allow the appeal incorrectly. The non-admission complaint therefore has a different objective than the review. The latter is intended to point out legal errors of the contested judgment, while the non-admission appeal is intended to overcome the admission barrier of § 115 (2) FGO.

The Federal Finance Court (BFH) decides on the non-admission complaint and thus the next higher office. This instance move is called the devolutive effect. In addition, the non-admission appeal leads to the suspension of the legal force of the judgment, so-called suspensive effect. Therefore, the non-admission appeal is an appeal in the financial court proceedings. The non-admission complaint is also subject to representation by members of the tax consulting professions.

The non-admission complaint is justified if the admission requirements for a revision within the meaning of § 115 (2) FGO are met. We have already explained the admission requirements in detail in one of our other contributions.

If the revision is sought in order to unify the case-law, it is necessary, on the one hand, to cite the divergent case-law, but, on the other hand, to contrast the fundamental and abstract rule of law of the contested judgment. In order to do so, judgments must have been given on the same point of law, and the facts to be determined must be comparable. In addition, it must be stated that a decision of the BFH is necessary to safeguard the legal unity. The deviating decision shall also be indicated by date and reference or reference.

The revision on grounds of fundamental importance presupposes that the appellant raises a sufficiently specific legal question, the clarification of which is necessary in the interest of the general public in the uniformity of case law. We discuss the case law and the statements in specialist literature, which deal with the problem divergently.

The non-admission appeal must be filed within one month of the decision of the tax court. The submission is made to the Bundesfinanzhof.

The justification can be submitted afterwards, but must be submitted within two months. On request, the time limit may be extended by the Chairman of the BFH Senate by one month. The justification must also be submitted to the BFH. This must set out the admission requirements of the revision in the sense of § 115 (2) FGO. We always justify our non-admission complaint very precisely and sufficiently substantiated. In addition, we explain in general terms why we will win the revision itself. The BFH has placed high demands on clarity, comprehensibility and comprehensibility of the complaint. Consequently, in order not to dismiss the refusal appeal as inadmissible, it is important to comply with these requirements. Consequently, only the statement of grounds of appeal must enable the BFH to examine the conditions for admission to appeal. It is therefore necessary to lay down clearly the reasons for the refusal of authorisation and not to make insignificant statements or duplications. Thus, the number of pages should also be limited.

Technical advice for

Non-approval complaint?

The BFH decides on the non-admission appeal by order without oral hearing with the small composition of three judges. These should at least briefly justify the decision if the refusal appeal is rejected. At most, if the justification does not contribute to the clarification of the admission condition, it is not necessary. The refusal of the non-admission appeal entails the legal force of the tax court judgment. However, if the refusal appeal is granted, no justification is necessary.

If the BFH grants the refusal appeal, the proceedings shall be continued as an appeal. Therefore, the complaints procedure goes into the review procedure. Consequently, the complainant no longer has to file an appeal. Only if a procedural error on the part of the Finanzgericht justifies the admissibility of the final complaint, the BFH refers the legal dispute to the Finanzgericht for another hearing. Then another Senate of the Finance Court is negotiating the revision. Therefore, in the event of a procedural error, no further revision procedure takes place before the BFH.

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