Even if the time limit for filing the action has passed, there is still a possibility to obtain a decision on the substance. This requires an application for re-establishment. We explain the legal consequences of this and the conditions for re-establishment.

Appeals must in principle be filed within certain deadlines. However, it may have been impossible for the taxable person to comply with the time limit for appeal. In this case, he may be granted restitution to the previous state. The appealing authority may also re-establish its previous status.

Re-establishment has the consequence that the retrieved legal act is deemed to be effected in due time. This retroactively eliminates the existing or legal force. If re-establishment cannot be granted if the time limit for bringing an action has been missed, the action shall be inadmissible.

Restoration to the previous status is regulated in § 56 FGO for legal periods according to the FGO. For the statutory deadlines within the framework of the administrative procedure, including the objection procedure, § 110 AO comes into consideration.

In the case of contest actions and commitment actions, the time limit for bringing action pursuant to § 47 (1) FGO is one month. In doing so, it shall in principle start with the notification of the out-of-court appeal decision. In order to comply with this period, the application must reach the competent tax office by the last day of the period at midnight. The application has been received if it comes within the sphere of power of the tax office in such a way that the clerk can take note of it. The electronically transmitted complaint has been received pursuant to § 53a paragraph 5 sentence 1 FGO as soon as the document is stored on the device intended for reception. Subsequently, the sender of the electronic action must confirm the time of receipt by the court.

§ 47 paragraph 2 FGO facilitates the procedure. Accordingly, the time limit for bringing an action is also respected if the action is filed in good time with the exit or appeal authority. For this, it is sufficient that the claim is thrown into the mailbox of the tax office or submitted to the tax office in a sealed envelope addressed by post to the tax court.

If the contested administrative act or the contested appeal decision is not accompanied by proper information, the time limit for bringing an action pursuant to § 55 (1) FGO does not run.

There are no deadlines for the filing of claims for performance and claims for judgment. However, the opposition to the tax ruling must also be filed in out-of-court proceedings within one month of the notification of the tax ruling.

In order to be able to grant reinstatement to the previous status, a legal period must have been missed. The request must then also be specified on this missed period.

Failure to comply with the time limit presupposes that the relevant time limit has been effectively put into effect and the time limit has been exceeded without the respective legal act having been taken.

The prerequisite for re-establishment is that the plaintiff was prevented from complying with the time limit for bringing an action without fault. Any fault and thus also simple negligence precludes restitution to the previous status. The plaintiff must normally be attributable to the fault of his authorized representative in accordance with §§ 155 FGO, 85 paragraph 2 ZPO. The overwork of the litigant is therefore also attributable to him. However, he is not attributable to delays in the transport of letters by post.

The obstacle must have become the cause of the time limit. If the impediment to the time limit is eliminated even before the expiry of the statutory time limit, causality is absent. But then the shortness of the remaining period can be considered a new obstacle.

In addition, the plaintiff must have requested reinstatement to the previous status. The facts used to justify the lack of fault must be made credible. However, credibility can also take place in the further proceedings. The factual argument includes that the applicant submits substantiated, conclusive, non-contradictory and essentially complete, which is intended to explain and excuse the failure to meet the deadline. For the conclusive presentation of such facts, the obstacle to the time limitation must be described in detail and the events which are intended to justify the faultlessness must be set out.

The application may also be made if a decision based on the defaulting effect has already been issued. Re-establishment may abolish that decision retroactively.

However, re-establishment is admissible even without an application if the neglected act is made within the application period. This only replaces the motion. The case-law therefore requires that the applicant also present the grounds for re-establishment within the time limit and make them credible in the proceedings.

In exceptional cases at most, re-establishment is also required ex officio, if it cannot be assumed that re-establishment is exceptionally unwanted and if the circumstances of the case suggest reasons for re-establishment.

Restitution shall be decided by the court which shall rule on the failed act.

In addition, there is an application deadline. The application shall be made within two weeks of the removal of the obstacle. However, if the time limit for giving reasons is not met, the time limit shall be one month. The time of the removal of the obstacle is the same as the time from which a continuing obstacle is no longer without fault. If the time limit is omitted through no fault of its own, an application for re-establishment may be made again. The substance of the grounds for the application for re-establishment shall be submitted within the time limit.

After the expiry of the deadline, only those explanations will be taken into account that explain unclear information or supplement incomplete information. Substantially new reasons, however, are not taken into account.

Within the application period, the neglected legal act must be completed in accordance with the formalities generally provided for this purpose.

The request for re-establishment to the previous status cannot be made if one year has elapsed since the failure to comply with the deadline. This period is absolute and not again covered by § 56 FGO. In case of force majeure, however, the time limit does not apply. The term “force majeure” is narrower than the term without fault. Force majeure is therefore to be understood as an event which, under the given circumstances, could not be averted even by the greatest care to be reasonably expected and reasonable by the person concerned under the circumstances of the given case – that is, taking into account his situation, experience and education.

An unintentional obstacle may be illness of the person concerned or of the authorised representative if it occurs suddenly and unpredictably and is so serious that it is unreasonable for him to meet the deadline or appoint a representative in time.

The due diligence of the litigator requires reliable precautions in timely matters to ensure the timely outcome of timely submissions. One of the tasks is therefore to ensure, through appropriate organization, that the deadlines are duly entered and observed. For this reason, office oversights are usually not an obstacle through no fault of their own.

Anyone who requests the granting of reinstatement to the previous state because of the non-receipt of a letter which is supposed to have been sent in time must state exactly which person at what time (day, time) in what manner (entry into a specific letter box or delivery at a specific post office) gave the letter in which the letter which is supposed to have been sent in time to the post.