Difference between enactment and judgment

BFH case law

Table of Contents

1 binding effect
2 Application of BFH judgments
2.1 Principle
2.2 Protection of legitimate expectations according to § 176 AO
2.3 Non-application waiver
2.4 BFH decisions not officially published
2.5 special features
3 Bibliography
4 Related Lexicon Articles

1. Binding effect

Decisions made and legally binding in a tax court procedure (→ Finanzrechtsweg) are only binding on those involved in the legal dispute and their legal successors (Section 110 (1) FGO). Parallel cases are not recorded. Supreme court decisions do not have a binding binding effect in similar cases later. Although lower courts and the administration are regularly guided by decisions made by the highest or higher courts, they are not legally obliged to do so. Only decisions of the Federal Constitutional Court are binding on the constitutional organs of the Federation and the Länder as well as all courts and authorities according to § 31 BVerfGG.

Section 110 (2) FGO is to be interpreted in such a way that the legal force of a judgment takes precedence over the amendment regulations of the AO (BFH of 4 March 2020, II R 11/17, NV; DStRE 2020, 1009; LEXinform 0951296).

2. Application of BFH judgments

2.1. principle

The decisions approved for official publication are neutralized (anonymization; removal of references to the specific taxpayer in order to maintain tax secrecy (→ tax secrecy)) and after the formation of a guiding principle that reflects the key message of the decision in the published by the members of the Federal Fiscal Court - so-called official - collection of the decisions of the Federal Fiscal Court - BFHE - published.

If these rulings or resolutions of the BFH are published in BStBl Part II, the tax offices are instructed to apply these decisions in comparable cases. The administrative body of the OFD Karlsruhe dated January 14, 2005 (FG-2032/1 A - St 332, FR 2005, 223, LEXinform 0579030) comments on the application of BFH decisions by the tax authorities. The BFH decisions planned for publication in BStBl Part II will then be published in advance on the BMF's website. The BFH decisions intended for publication in BStBl II are therefore to be generally applied from the time of publication on the Internet.

The incompleteness of the BFH decisions in the BStBl is due, among other things, to the fact that those tax law decisions that the tax authorities do not (yet) want to apply are not printed in the BStBl or only after a long time (often in connection with a non-application decree).

2.2. Protection of legitimate expectations according to § 176 AO

With its judgment of December 6, 2007 (V R 3/06, BStBl II 2009, 203), the BFH had to decide on the input tax adjustment according to § 17 UStG after the invoice has been corrected. In the underlying circumstances, the sales tax reported separately for a non-taxable sale of business was corrected. The input tax deduction that has already been used should be corrected accordingly. With judgment of 2.4.1998 (V R 34/97, BStBl II 1998, 695), however, the BFH decided that only the tax amount actually owed could be deducted as input tax. The Tax assessment for the 1995 year was on 19.8.1998 issued by the tax office with the approval of the coveted input tax deduction. The invoice was corrected on March 26, 1997. With a decision of February 27, 2001, the tax office corrected the 1997 sales tax assessment to include the input tax deducted for the 1995 fiscal year from the sale of the business.

In a judgment of December 6, 2007 (V R 3/06, BStBl II 2009, 203), the BFH decided that the prerequisites for an input tax adjustment for the 1997 financial year were not met. However, for reasons of the protection of legitimate expectations, Section 176 (1) No. 3 AO must be observed. This regulation requires the Stpfl. to continue to be presented as it would have been taxed according to previous case law (here: deductibility of the tax owed in accordance with Section 14 (2) UStG 1993 in the VAT notification for 1995 and correction in accordance with Section 14 (2) sentence 2 in conjunction with Section 17 UStG in the VAT notification of the year in which the invoice was corrected in 1997).

The VAT notification for 1995 was subject to review. The assessment period for the VAT 1995 began with the expiry of 1998 (submission of the VAT declaration) and ended with the expiry of the fiscal year 2002. In the fiscal year 2001 - with the change in the VAT assessment for the fiscal year 1997 - the deadline had not yet expired and the assessment for the year 1995 was still subject to review (→ tax assessment subject to review). The determination of the reservation does not apply according to Section 164 (4) AO until the statute of limitations has expired. Section 176 (1) sentence 1 no. 3 AO also applies to notices issued subject to review. The regulation assumes that a changed case law is to be applied to all tax cases that have not yet been closed, even if the facts occurred at a time when the more favorable case law still applied. Section 176 (1) sentence 1 no. 3 AO only protects trust in the validity of the tax assessment, in which the tax authority has based the more favorable (old) jurisprudence.

The case law has not already changed when the court concerned has made the decision; i.e. the date of the decision is irrelevant. Rather, what is decisive is whether the changed case law has already been published on the same facts and / or the same legal question at the time the administrative act to be changed is issued. If the decision has been approved for publication and published in a specialist journal before the notification is issued, Section 176 (1) sentence 1 no. 3 AO no longer applies.

day of release of BFH judgment from 2.4.1998 (V R 34/97, BStBl II 1998, 695) was the 6.8.1998 and the decision is already under that 14.8.1998 in DStR 1998, 1261 been published. All times are before 19.8.1998; this is the day on which the tax office issued the tax assessment for the 1995 sales tax.

2.3. Non-application decree

A letter from the BMF that is published in BStBl Part I is referred to as a so-called non-application decree. This instructs the tax authorities not to apply the principles contained in a specific BFH decision published at the same time in BStBl II, not beyond the decided individual case. This mainly affects decisions whose legal principles would be beneficial for taxpayers. Since the non-application decrees only bind the tax authorities and not the taxpayers and the courts, comparable cases with renewed legal proceedings are often brought before the BFH in order to give it the opportunity to re-examine its legal opinion and that of the Federal Ministry of Finance. The Federal Ministry of Finance regularly joins these proceedings in order to present its own legal position. In the event that the BFH adheres to its legal opinion, the non-application decree is regularly repealed.

2.4. BFH decisions not officially published

The majority of the decisions of the BFH are not released for official publication. This is justified because many decisions do not contain any significant or fundamental statements beyond the individual case. These decisions are also published. This is based on the fact that in taxation practice there is a need to make all decisions of the BFH as far as possible, including those not intended for official publication, fully accessible to the specialist public. These decisions are published in the collection of decisions BFH / NV. In these cases, it is important to convince the tax authorities in similar cases to apply the legal question beyond the decided individual case.

In fact, only those decisions that are not worthy of documentation, i.e. that do not contain any meaningful statements, are not published.

2.5. particularities

The FG Hamburg ruled with a legally binding decision of 9 April 2003 (III 86/03, EFG 2003, 1184) that a tax office may not negate a BFH judgment on the grounds that it has not yet been published in the BStBl. The OLG Koblenz ruled on July 17th, 2002 (1 U 1588/01, OLGR 2002, 383) that decision-making officials of the tax authorities must be informed promptly about the current case law of the BFH. Otherwise there is usually an organizational fault.

3. Bibliography

Spindler, The Non-Application Decree in Tax Law, DStR 2007, 1061; Jörißen, The different possibilities of the publication of judgments of the fiscal jurisdiction and their meaning for the tax practice, Steuer & Studium 2008, 81.

4. Related Lexicon Articles

→ Financial legal process

→ Tax assessment subject to review

→ Tax secrecy


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