The taxpayer must specify expenses in his income tax return that the tax office does not recognize when issuing the tax assessment. According to § 350 AO, the taxpayer, as he is complained of the non-recognition of his expense, can appeal against this tax assessment in accordance with § 357 AO. According to § 355 AO, the objection is admissible within the appeal period of one month.
After the taxpayer has submitted an objection to his decision and the tax office has rejected it with an objection decision, there is the possibility to file a complaint with the tax court. The decision of the Finance Court can only be appealed to the Bundesfinanzhof if it has been approved.
Some proceedings are of such far-reaching importance that tax rulings are provisionally issued in the relevant points and only become valid once the judgment has been issued. An objection is then no longer necessary.
The tax administration regularly reviews the list of items in which tax notices are provisionally issued. Usually it is about questions where the constitutionality or the interpretation of a law is unclear.
The aim of this work is to identify some current relevant pending proceedings as of June 2018, to describe the facts and to explain the controversial question, which the Bundesfinanzhof now has to clarify with the respective proceedings.
After receiving a tax ruling, the tax court cannot in principle be called immediately (§ 44 Finanzgerichtsordnung). First of all, an out-of-court appeal procedure according to § 347 ff. tax code (objection procedure). The tax notice of the tax office contains an appeal notice. It states that, according to § 355 AO, the taxpayer can only lodge an objection within a period of one month. [1] The taxpayer should justify the objection in accordance with § 357 AO so that the tax office can review the tax assessment. The objection is free of charge. [2] After a corresponding indication, it can also be decided to the detriment of the taxpayer (deprecation). But then you have the opportunity to withdraw the objection. [3]
The appeal body of the tax office grants the objection or decides on the objection by appeal decision. The duration of the objection decision depends on the tax office and is usually three to twelve months. Only if the objection is not fully granted, action can be brought in accordance with §§ 40 ff. [4] The appeal decision shall also contain information on appeal. It shall indicate the time limit for bringing an action of one month. [5] The appeal notice also states which tax court is competent for the matter.
The action must be brought in writing to the tax court. The action is distinguished from the so-called interim legal protection (suspension of execution according to § 69 FGO or interim order according to § 114 FGO). This must also be submitted in writing to the tax court. The tax court also accepts complaints and requests for legal protection at the office for writing.
The action must include the plaintiff, the defendant (tax office), the request for action (application), the decision of the tax office being attacked and the appeal decision.
The lawsuit must be signed by hand. It is recommended that the action be accompanied by a copy of the contested decision and the objection decision. The pleadings should be filed in duplicate, as photocopies increase court costs.
According to §§ 40, 41 FGO, there are four different types of action:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.