According to § 115 (1) FGO, the final complaint is an appeal against judgments and court decisions of the tax courts. The appeal must be directed against other decisions of the tax courts.

However, it is important to recognize that factual questions, i.e. circumstances of the facts, are not determined during the revision. Rather, it is only legally assessed. Therefore, no new facts or evidence can be presented before the Bundesfinanzhof (BFH). Voting rights or requests for substantive law can also no longer be submitted. Therefore, BFH is bound by the actual findings of the Finanzgericht. At most, if the factual findings were made due to procedural errors, BFH is not bound by the actual findings of the Finanzgericht.

In this respect, however, the final complaint is a comprehensive remedy in accordance with § 118 (3) sentence 2 FGO, as a result of which the facts are again fully legally assessed. Therefore, BFH is not bound by the pleas invoked for revision. At most, if only procedural deficiencies are alleged, he may decide in this respect only on the procedural deficiencies alleged. That is why it also requires authorisation. Therefore, it is permissible only if the formal conditions are met. Both the taxpayer and the tax office can make the audit.

The final complaint is always decided by a colligial tribunal, since cases of final complaint have special difficulties of a legal nature and have fundamental significance. Therefore, a single judge never decides.

The revision requires approval. Certain conditions must be met for this. These are intended to ensure that the BFH does not always have to check a judgment for its legal correctness, but only in cases of particularly serious injustice. Therefore, when filing the appeal, it is crucial to know which reasons for the appeal exist at all. These are listed in § 115 paragraph 2 FGO. Whether the admission requirements are met is examined by the tax court.

The appeal must be allowed in case of fundamental importance of the case. A case has fundamental significance if there is a legal question at issue which is relevant for a decision and needs clarification and which has not yet been clarified in more detail by the BFH and affects the abstract interest of the general public in the uniform development and application of the law. The decisive factor is therefore whether a larger group of taxpayers is affected by the uniform application and development of the law. It is not enough that other comparable taxpayers are affected. Rather, the general public must also have an interest in clarifying the legal question.

A fundamental revision is therefore out of the question if the problem was already the subject of a decision of the BFH and no further clarification is to be expected. The latter is only possible if new aspects are affected which were not clarified by the previous decision. The subject of a fundamental review may be both procedural and substantive issues.

In summary, a fundamental revision is therefore not permissible for establishing facts, with regard to legal principles, which are represented in general opinion or permanent case law of the BFH or questions which are easily clarified with regard to the law or do not concern the general public.

A revision is also permissible as a legal training revision. This is possible if a previously unresolved abstract legal question has arisen and is to be clarified by the BFH. This is to be assumed above all if there is a general interest in establishing guidelines for the interpretation of the relevant legal provision. However, such a revision can also be made if the BFH has already decided on the question, but weighty arguments were not considered. Nevertheless, the clarification must be significant beyond the individual case. This is lacking if the decision depends on the actual specificities of the individual case.

The so-called divergence revision is an incident of the legal training revision. Accordingly, the revision must be allowed if the tax court judgment deviates from a decision of the BFH and is based on this deviation. For this purpose, the tax court must have established a legal provision in the reasons for the decision that deviates from a legal provision of BFH that is also supportive. As part of the revision, we first work out the legal provisions for the reasons for the decision and formulate them in our revision document. There we also explain to what extent the legal provision differs from that of the BFH and how the contested judgment is based on the deviation. This is important because otherwise it is not clear what we are against and so the review is regularly rejected as unfounded. Therefore, a clear revision note is of particular importance.

The revision must also be allowed to ensure a uniform case law. For this, the deviation from the case law of another court, i.e. also a financial court, is sufficient.

In addition, the revision of the standardisation of jurisdiction covers the correction of serious errors in the application of law. It is necessary that confidence in the jurisprudence can only be restored by a supreme court correction of the tax court decision. For example, the revision must be allowed if the tax court has overlooked a clearly relevant and decisive provision. However, legal errors below this limit are not enough. Therefore, the mere ignorance of a BFH case-law in the interpretation of a provision does not constitute an unlawful decision. Applications should, however, be objective arbitrariness or economically unreasonable, realistic estimation results.

The procedure review may be initiated if there is a procedural deficiency. In other words, if there is a violation of the legal procedure. However, procedural provisions of the Tax Code are not included. The reason for the appeal is therefore the wrongful refusal to suspend the proceedings or to refer them to the Federal Constitutional Court.

On the other hand, inadequate factual findings or the omission of a substantive request constitute substantive errors which cannot be attacked by means of a procedural revision.

If the appeal has been rejected, the appellant shall be entitled to appeal against refusal of admission. How this works and what to consider, we have explained for you in one of our other contributions.

The appeal may be based on the fact that the contested decision is based on the non-application or incorrect application of federal law. However, the decision is not based on the infringement of substantive law if, for other reasons, it is correct in the end or is merely an interlocutory statement which does not support the judgment erroneous. Consequently, the outcome of the decision must be unlawful. Once again, it has to be examined whether the decision based on the legal opinion of the tax court could have been different if the error had been avoided.

In accordance with the principle of full revision, the BFH generally reviews the final complaint in full legally and without being bound by the final complaints. If, on the other hand, only procedural deficiencies are alleged, the scope of the examination is limited to this alleged procedural deficiency. You should therefore never justify a revision solely on the basis of procedural deficiencies, but also complain of material errors.

Particularly serious procedural violations are indicated in § 119 FGO. In these cases, it is irrefutably suspected that the tax court ruling is based on the violation of federal law. These are, for example, violations of the legal judge, the granting of legal hearing or the principle of public access.

Formal requirements for the revision are provided by § 120 FGO. The final complaint must be filed with the BFH in writing or electronically within one month of service of the complete judgment. It must show which judgment and for which party the appeal is to be filed. However, the revision does not require any justification at this stage. Therefore, only a sufficiently specific request is required. Extensions to the request for revision shall be admissible until the expiry of the justification period.

Within two months of the service of the complete tax court judgment, the appeal must be justified in writing. Upon request, the Chairman of the BFH Senate may extend the justification period. At the time of filing and reasoning, the applicant must be represented by a legal representative.

The grounds of appeal must contain the statement of the extent to which the judgment is contested and its annulment requested, as well as the reasons for the appeal. The latter includes the presentation of the facts for the alleged infringement or the alleged lack of procedure. It must therefore not be left to the Court of Appeal to determine the necessary facts on the basis of the files themselves. Therefore, in the explanatory memorandum of appeal, we examine the case objectively and explain exactly why the judgment is legally erroneous, so that there is no doubt about the scope and purpose of the explanatory memorandum.

The revision requires good preparation. In addition, there are various special features that we consider. On the one hand, there are objections that cannot be combated with revision and complaint. This often requires further appeals, which must be filed earlier on a regular basis. These include, for example, the request for the addition of protocols or the correction of sentences.

The BFH has several possibilities to decide on the revision. These decisions are made by the competent Senate. If the revision is inadmissible, the BFH rejects it by decision. If the appeal is unfounded, the Senate must reject it with the composition of 5 judges. If the Senate unanimously considers the revision to be unfounded and an oral hearing not necessary, it must briefly justify the resolution. A judgment is issued after an oral hearing, but the parties can also agree to waive it. In addition, the Senate can reject by court decision without oral hearing.

If, on the other hand, the revision is fully or partially justified, the Senate must decide itself when it is ready for decision. If, however, questions of fact still have to be determined, the BFH annuls the tax court decision under appeal and refers the matter back to the tax court for other hearing and decision.

Tax specialist lawyers and tax advisors for tax disputes

Legal action