Avoidance and settlement of tax disputes
description
Transcript of Avoidance and settlement of tax disputes
Referent: Dr. Herbert Becherer Seite 1
Avoidance and settlement of tax disputes
Speaker: Dr. Herbert Becherer, Steuerberater (tax adviser)Vice-President of Bundessteuerberaterkammer (Federal Chamber of Tax Advisers), GermanyVice-President of the CFE
St. Petersburg International Legal Forum
18 May 2012 in St. Petersburg
Referent: Dr. Herbert Becherer Seite 2
Avoidance and settlementof tax disputes
1. Principals of the tax procedure
Compliance and equality of taxation
The tax authority investigates the facts ex officio principle (investigation principle)
The taxpayer has to co-operate (co-operation maxim)
Constitutional law prohibition on excessiveness
Right to be heard/fair hearing
Principle of the protection of legitimate expectations Principle of good faith
Referent: Dr. Herbert Becherer Seite 3
2. Unilateral voluntary agreement of the tax authority towards the taxpayer
Binding ruling (§ 89 General Fiscal Code)
Obtain reliable statements from tax authorities following a tax audit
(§§ 204 ff. General Fiscal Code)
„Lohnsteueranrufungsauskunft“ – request for information relating to wage tax (§ 42e Income Tax Act)
Avoidance and settlementof tax disputes
Referent: Dr. Herbert Becherer Seite 4
3. Actual settlement
Binds tax office and taxpayer under the following conditions:
No agreement in legal questions
In cases of difficult verification of the facts, only
Cases of estimate, valuation, future-oriented forecast
No result that is clearly incorrect
The involvement of an official authorized to take decisions is required
Avoidance and settlementof tax disputes
Referent: Dr. Herbert Becherer Seite 5
4. Administrative appeal procedure:
Appeal
Purpose and legal nature
Legal protection of the person who appeals
Self-control of the administration
Relief of tax courts
Avoidance and settlementof tax disputes
Referent: Dr. Herbert Becherer Seite 6
4. Administrative appeal procedure
Admissibility criteria for appeal
Admissibility to apply to tax authorities
Admissibility of the appeal
Right to object
Deadline
Form
Demand for legal protection
Avoidance and settlementof tax disputes
Referent: Dr. Herbert Becherer Seite 7
4. Administrative appeal procedure
Appeal, no devolutive effect = no automatic suspension (§ 367 I General Fiscal Code)
Limited suspension of the appeal
(§ 361 I General Fiscal Code)
Suspension of execution (§ 361 II General Fiscal Code)
Suspension and stay of the proceedings (§ 363 General Fiscal Code)
Avoidance and settlementof tax disputes
Referent: Dr. Herbert Becherer Seite 8
4. Administrative appeal procedure
Decision on the appeal
a) The tax office dismisses the appeal as inadmissible
b) The tax office dismisses the appeal as being unfounded
Requirement for written form and reasoning
Change for the worth possible, appeal may be withdrawn before
Avoidance and settlementof tax disputes
Referent: Dr. Herbert Becherer Seite 9
4. Administrative appeal procedure
Decision on the appeal
c) Appeal admissible and justified in its entirety: The tax office provides help by withdrawing, modifying or cancelling – as applied – the contested administrative act.
d) Appeal admissible and partly justified: The tax office provides partial remedy by modifying or cancelling partly the contested administrative act.
Avoidance and settlementof tax disputes
Referent: Dr. Herbert Becherer Seite 10
5. Legal action
The decision on the appeal (cases a, b, d) may be litigated at the fiscal court.
Two instances in the tax courts: Tax Court (FG: Court of First instance) Federal Fiscal Court (BFH: Fiscal Supreme Court)
Avoidance and settlementof tax disputes