External tax audits are always on the agenda at corporations such as the GmbH. Rather rarely does it come in all points to a complete agreement with the auditor or the auditor of the tax office. This is only understandable, because taxpayers on the one hand and auditors on the other think in different directions. Nevertheless, good compromises are often reached during the final discussion. With a binding commitment according to §§ 204 to 207 AO, the treatment of certain situations can also be carved in the proverbial stone for the future.
1st Background of the binding commitment
In principle, the tax assessment of situations is exclusively the responsibility of the competent tax office. To put it somewhat untechnically, taxpayers have nothing “to say”. As early as 2006, however, the legislature recognized that a binding agreement in certain situations can be beneficial for both sides. In response to this finding, Section 89(2) AO, which governs binding information, was introduced.
With binding information, taxpayers can have a not yet realized fact checked by the tax office and ask questions. In the context of tax design, it is usually a question of whether a model developed in theory can also work in practice. Relevant here is above all a possible misuse of design according to § 42 AO, but also restrictive norms of substantive tax law such as license and interest rate barriers play a role. If the tax office has provided binding information, it is bound, if the facts are realized accordingly, to the assessment made in advance.
The same must also apply to already realized situations and their tax classification. With the binding commitment according to §§ 204 to 207 AO, the legislature meets this need. A situation that was finally assessed in the context of an external audit will also be classified accordingly in the coming years through the binding commitment. The discretion of the tax office is reduced in this respect.
Conditions, form and binding effect of the binding commitment
The binding commitment is finally regulated in §§ 204 to 207 AO. The standards are very general and broad in order to ensure that an agreement can actually be reached between the auditor and the taxpayer. The legislator wanted to consciously put the “corset” wide.
With regard to binding commitments, of practical importance are in particular:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.