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Change of final tax assessments

Academic Working Group Verlag Wolters Kluwer Deutschland GmbH

The deadline for setting tax assessments

Your tax bill is still not final, if the objection period of one month has not yet expired, it is subject to review in accordance with § 164 AO or it is provisional in accordance with § 165 AO. If these cases do not exist, the tax assessment is final.

Definitive tax assessments may only be changed or tax assessments sent at all until the end of the assessment period. The Fixing period () is according to § 169 AOnormally 4 years, 5 years for frivolous tax reduction and 10 years for tax evasion. The deadline begins at the end of the calendar year in which you submitted your tax return (Section 170 (2) No. 1 AO).

You file your 2015 tax return in 2016. The fixing period begins at the end of December 31, 2016 and ends four years later at the end of December 31, 2020.

Without filing a tax return the period begins at the end of the assessment period if there is no obligation to pay (Section 170 (1) AO). If you are obliged to submit a tax return, but without doing so, the assessment period begins no later than three years after the end of the assessment period for which the tax return is to be submitted (start-up suspension in accordance with Section 170 (2) No. 1 AO).

You had to file an income tax return for 2009, but have not yet done so. The assessment period began on January 1, 2013, because the taxes were incurred at the end of 2009, and ends four years later at the end of December 31, 2016. Until then, the tax office may require you to submit a tax return or issue an assessment notice. It remains at the beginning of 1.1.2013, even if you only submit the declaration afterwards.

Whether a statute of limitations has occurred also applies to spouses assessed together for each spouse separately to be examined (BFH judgment of April 25, 2006, X R 42/05, BFH / NV 2006 p. 1536).

Should you receive a tax assessment from the tax office for which you think the Fixing period already expired then you should definitely file an objection. Otherwise you have to pay the required tax even though the decision should not have been sent (BFH judgment of 6.5.1994, V B 28/94, BFH / NV 1995 p. 275). However, the deadline is still met if the tax assessment notice has been sent to the post office before the deadline (Section 169 (1) sentence 3 No. 2 AO) or faxed (BFH judgment of January 28, 2014, VIII R 28/13, BStBl. 2014 II p. 552) and will only be sent to you by the post office after the deadline has expired or you will print it out on a computer fax.

Change of a final tax assessment

Definitive tax assessments can only be changed under very specific conditions within the assessment period. Just as you can have the decision changed in your favor, the tax office can also change it to your disadvantage. If you do not agree to a subsequent change in the decision by the tax office, please lodge an objection.

If you submit one with one of the following reasons within the assessment period, the expiry of the period will be suspended until the tax office has made an incontestable decision on your application (Section 171 (3) AO). If you merely submit a corrected tax return without this application, this does not prevent the start of the limitation period (BFH judgment of August 28, 2014, V R 8/14, Federal Tax Gazette 2015 II p. 3).

New facts or evidence

According to Section 173 AO, a tax assessment notice can be revoked or changed if facts or evidence subsequently become known that lead to a change in the originally assessed tax.

You want to change the decision

A tax-relevant one new fact which to one lower tax leads (Section 173, Paragraph 1, Clause 1, No. 2 AO), it may be, for example, that you had expenses for work equipment or for a business trip in one of the past years, you made payments to a certain insurance company, you expenses for planning your Rental property or tax-free amounts are included in your annual wages.

New evidence are, for example, documents, receipts, certificates or testimony that you can present.

Confound You one not with their tax consequences: If you forgot to include labor expenses on your tax return two years ago, that's the fact. If, on the other hand, you had recognized the expenses and they were wrongly rejected by the tax office, this affects the tax consequences (the expenses would have been deductible as business expenses). You should have lodged an objection in good time. Are not facts new laws, guidelines and judgments, which were adopted or issued in later assessment periods. This also applies to the determination of the unconstitutionality of a tax provision by the Federal Constitutional Court (BFH judgment of May 12, 2009, IX R 45/08, BFH / NV 2009 p. 1856).

You may take part in becoming aware of the new fact don't be grossly to blame. In particular, gross negligence exists if you have not carefully read the paper tax forms and have not answered any questions expressly asked there. You must also follow the official instructions for completing the form. Your tax advisor is also grossly at fault if he only presents you with the compressed tax return for signature after the Elster has been dispatched, without first having determined the complete tax situation for you (BFH judgment of May 16, 2013, III R 12/12 , DStR 2013 p. 10).

At a electronic tax return Like the DATEV programs used by tax consultants, simply forgetting to transfer self-determined taxation bases (e.g. a loss) to the tax return is not generally grossly negligent (BFH judgment of February 10, 2015, IX R 18/14, DStR 2015 p. 1440) . Here the tax office has to prove gross negligence. In contrast to this, there is a judgment according to which no change of the decision is possible if the taxpayer has overlooked an input line in the ELSTER program, for example for the deductible contributions to the pension fund (BFH judgment of March 18, 2014, XR 8/11, BFH / NV 2014 p. 1347).

If you are not at fault, for example, in the following cases there will be Change of decision into consideration:

  • The forms did not ask for the forgotten information (BFH judgment of June 29, 1984, VI ​​R 181/80, BStBl. 1984 II p. 693), e.g. the deductibility of was not listed in the cover sheet or in the official explanation (FG Baden-Württemberg from May 19, 2004, 14 K 265/03).

  • You were not aware of a tax-saving option (deductibility of professional driving license costs: BFH judgment of June 29, 1984, VI ​​R 34/82, BStBl. 1984 II p. 694).

  • You register a commercial activity, but do not claim your start-up losses. They believed that they could not declare any income without income (BFH judgment of January 23, 2001, XI R 42/00, BStBl. 2001 II p. 379).

  • You had enclosed a receipt for the tax office, but entered the wrong amount in the tax return because the receipt (e.g. interest certificate) was difficult to understand (FG des Saarlandes dated July 2nd, 1991, EFG 1992 p. 5).

  • The explanations on the income tax return attached to the electronic Elster form are not sufficiently understandable, clear and unambiguous (BFH judgment of March 20, 2013, VI R 9/12, DStR 2013 p. 10).

If you submit an application to change the tax assessment according to Section 173 (1) sentence 1 no. 2 AO, your tax officer can review the entire tax assessment again. Limited Changes to your disadvantage are then possible, withdrawing the change request is of no use here.

The tax assessment may, however Not to their favor changed if the tax office would not have decided otherwise with original knowledge of the facts or evidence with a probability bordering on certainty (BFH judgment of April 22, 2010, VI R 40/08, BFH / NV 2010 p. 1520).

The tax office wants to change the decision

A tax-relevant one new fact which to one higher tax leads (Section 173, Paragraph 1, Clause 1, No. 1 AO), the tax office - just as in the case of a change in your favor - must assess the legal opinion or administrative practice at the time. Under no circumstances may it fall back on more recent BFH rulings for the justification. Furthermore, the tax office must not have violated its duty to investigate the facts ex officio (Section 88 AO). So it must have investigated all apparent ambiguities and questions of doubt.

  • If the tax office has recognized a landlord with excessive debt interest as income-related expenses, it may no longer change the final tax assessment if it had all property documents in its tax file in order to identify the error itself in good time (FG Münster dated July 26, 2012, 3 K 207 / 10 E, EFG 2012 p. 2078).

  • It is not possible to change the decision if, after moving, the new tax office does not want to fully tax the previous incorrect taxation of a private pension from a transfer of assets with the too low share of income until years later after becoming aware of the transfer contract (FG Rhineland-Palatinate of 16.6.2015, 5 K 1154/13).

You are allowed to change your tax assessment in this respect Objection insert as the change made by the tax office lasts. An improvement over the original notification is not possible.

Apparent inaccuracy

The tax assessment can still be corrected in accordance with § 129 AO if you or the tax officer Spelling and calculation errors or the like. The mistake must be in disclosing the facts to everyone impartial third party be clearly identifiable. It does not matter whether the inaccuracy can be identified from the notification or whether you were able to recognize the error (BFH judgment of July 16, 2003, X R 37/99, Federal Tax Gazette 2003 II p. 867). An obvious mistake is, for example, the taxation of a pension with too high an income or taxation component.

To your disadvantage, for example corrected if the tax officer inadvertently grants you a tax allowance twice or incorrectly transfers data from your tax return in his entry form. If the clerk takes over incorrectly sent wage data from the employer and you thus receive a tax refund that is too high, the case law is divided as to whether the tax assessment may still be changed by the tax office (no: FG Münster dated February 24, 2011, 11 K 4239/07 E, BB 2011 p. 1429; yes: Lower Saxony FG of July 28, 2014, 3 V 226/14). The assumption of an error from your tax return can also be an obvious inaccuracy (BFH judgment of May 27, 2009, X R 47/08, BStBl. 2009 II p. 946). The BFH still has to decide what applies if pension insurance contributions to a professional pension fund are incorrectly entered in the tax return as limited deductible pension expenses (Az. X R 1/14).

Not changed the tax assessment may be to your disadvantage according to § 129 AO if the tax officer had not clarified or understood the factual relationships or was subject to a legal error. There is also no obvious error if the clerk does not later enter the wage replacement benefits in the input form in the tax office EDP (BFH judgment of December 8, 2011, VI R 45/10, BFH / NV 2012 p. 694). A final tax assessment cannot be changed if a landlord erroneously enters the rent including heating (excluding rent plus ancillary costs) on the front of Annex V as a total for the net rent, the separate line with the apportionments is not filled out and there is no advertising costs on the back of the form Has provided information on the ancillary costs (BFH judgment of 1.8.2012, IX R 4/12, BFH / NV 2013 p. 1).

Those not included as business expenses by a self-employed person in the EÜR Sales tax payments to the tax office can still be taken into account after the validity of the income tax assessment, if these payments are shown in the VAT return submitted at the same time as the EÜR (BFH judgment of August 27, 2013, VIII R 9/11, BStBl. 2014 II p. 439). The tax authorities accepted the judgment (order of the OFD Koblenz dated May 12, 2014, DStR 2014 p. 1775).

Is the tax office deviated from your tax return to your disadvantage, without justifying this in the tax assessment, and you have only noticed the error after the objection period has expired, apply for reinstatement in the previous status, referring to the AEAO to § 121 No. 3.

Change of a basic decision

Becomes a Basic decision (Notice of profit or loss determination, standard value notice, notice of the pension office, etc.) must be issued, repealed or changed for the first time, the Follow-up notification be corrected (Section 175 (1) sentence 1 AO). If, for example, you receive a handicap ID afterwards, you can apply to your tax office at a later point in time for the flat-rate amount for the handicapped that has not been received in recent years or that is too low.

A Pension notice is, however, no basic decision for income tax with regard to the start and duration of a pension (BFH judgment of May 27, 2009, X R 34/06, BFH / NV 2009 p. 1826) Likewise, the income tax assessment is not a basic assessment for trade tax. However, changes in the income tax profit from commercial operations automatically lead to a change in the Trade tax assessment notices, which in turn is the basic decision for the trade tax assessment.

Did you forget to put special advertising costs or special operating expenses in a separate Statement of Determination this cannot be made up for by means of a supplementary notice in accordance with Section 179 (3) AO if the assessment notice is already final (BFH judgment of 30.8.2011, IX R 8/11, BFH / NV 2012 p. 2).

Retroactive event

A tax assessment notice can be changed or repealed if an event occurs tax retroactive effect occurs (Section 175, Paragraph 1, Clause 1, No. 2 AO). Examples of retrospective events are:

  • Will be a Retroactive pension and if the entitlement to social benefits (e.g. sickness or unemployment benefits) ceases to exist retrospectively in full or in part, the tax-free benefits previously taken into account as part of the progression proviso are to be regarded and taxed as pension payments (AEAO § 175 No. 2.4).

  • For example, if your divorced spouse gives their consent to your withdrawal Maintenance As special expenses, it can only be changed after your tax assessment has become final. However, this does not apply to a subsequent application for real splitting if the consent of the spouse was already available when submitting the tax return (BFH judgment of August 20, 2014, X R 33/12, Federal Tax Gazette 2015 II p. 138).

  • If a spouse chooses the separate or individual assessment, the spouses are to be assessed separately or individually even if the joint assessment notice issued to the other spouse has already become final. If one spouse cancels his or her application for separate or individual assessment, the final assessment of the other spouse must be revoked.

  • Will be used in the Renovation of a purchased old building If the 15 percent limit of Section 6 (1) No. 1a EStG is subsequently exceeded for the purpose of renting, the renovation costs are retrospectively considered to be depreciable manufacturing costs.

On the other hand, the revocation or waiver of a pension commitment (BFH decision of 07/07/2005, XI B 134/03, BFH / NV 2005 p. 1755), changes in case law, retroactive changes to the law or changed legal assessments are not retroactive events and do not justify any tax waiver ( BFH judgment of February 14, 2011, XI B 32/10, BFH / NV 2011 p. 746). This also applies to a ruling by the European Court of Justice that differs from the final tax assessment (BFH ruling of February 14, 2012, VII R 27/10, BFH / NV 2012 p. 1257).