If the tax assessment is incorrect from your point of view, you can appeal against it.
In these cases, an appeal is advisable:
- The tax office has not recognized all the expenses claimed from your tax return as income-related expenses, special expenses or extraordinary expenses.
- Allowances were not taken into account because the requirements for them were allegedly not met.
- Certain expenses were not recognized and you do not know why because the explanations in the tax assessment do not provide any information.
- You only now realize that you have forgotten certain expenses in your tax return. Or: A receipt had disappeared and has only now reappeared.
It may also make sense to file an objection if you learn that a model case is pending in a matter that concerns you. In this case, you refer to these model proceedings in the grounds for the objection. If the test case is pending as an appeal before the Federal Fiscal Court, the Federal Constitutional Court or the European Court of Justice, the tax office must suspend your objection until the case has been decided. It is important that the file number of the respective model proceedings is indicated and that the issue in dispute is also narrowed down.
The objection to the tax assessment can be filed in writing or electronically. This can also be done by fax, computer fax or simple e-mail. You can also file the objection in writing directly at the tax office. It is not possible to file an objection by telephone.
Send the objection to the tax office that is named as the sender in the tax assessment notice. Specify exactly which tax assessment you are appealing (file number and date). Make it clear that you do not agree with the tax assessment. It is not mandatory to give reasons, but it makes sense. This increases the chances that you will be found to be in the right. If you file an unfounded objection in order to meet the deadline, state in your letter of objection that the reasons follow.
You can contest the tax assessment notice in accordance with the provisions of the German Fiscal Code (AO) (sections 347-367). They regulate the "out-of-court appeal procedure". This is the objection. In addition, there is the "judicial remedy procedure" in the form of a lawsuit under the Fiscal Court Code (FGO). Before you can file a lawsuit, you must always go through the objection procedure.
The objection must be filed within the appeal period.
You can also use an objection to defend yourself against the assessment of ancillary tax payments, e.g.
- Late payment surcharges (§ 152 AO),
- interest (§§ 233-237 AO),
- late payment surcharges (§ 240 AO),
- penalty payments (§ 329 AO),
- costs (§§ 178, 337-345 AO).
After the objection has been filed, the tax authority examines the notice. If the objection is admissible (i.e. meets the formal requirements), a decision is made on it.
If the tax office agrees with the applicant's reasoning and amends the tax assessment accordingly, it is referred to as a remedy. If the tax office does not fully follow the applicant's reasoning, it is called partial remedy.
The term "objection decision" hides a rejection. In this case, the tax office refuses to amend the assessment.
Since 2007, there is also the possibility of public announcement. In this way, the tax authorities can reject general objections.
Loss assessment notice
An objection to a tax assessment of 0 euros is generally inadmissible. Instead, an application for a loss assessment notice would have to be filed within the objection period, if applicable.
Application for correction
If only "minor" errors, such as spelling or calculation errors, are found in the tax assessment, it may be possible to forego a formal objection and instead submit an application for correction. Because of the lower administrative burden, you will usually receive a decision from the tax office more quickly. In contrast to an appeal, however, it is not possible to take direct legal action against the tax office's decision in this case.
Income from a shareholding
If you have income from a shareholding, you cannot take action against this by means of an appeal against the income tax assessment. If, for example, the income from a real estate partnership is incorrect, these amounts cannot be corrected via the income tax assessment. In this case, an objection must be filed against the assessment notice. If the deadline is missed here, the original assessment remains in effect; even if the amount is obviously incorrect.
Application for suspension of enforcement
Filing an objection does not yet release you from the payments required by the assessment notice. The payment deadlines stated there must be met. If you do not wish to do this, you must apply for a "suspension of enforcement" at the same time as filing your objection. This can be used to have the execution of the tax assessment suspended in whole or in part until the appeal proceedings have been concluded.
The tax office must comply with your request for suspension if enforcement would result in undue hardship for you that is not required by overriding public interests, or if there are serious doubts about the legality of the tax assessment, e.g.:
- The Federal Fiscal Court has not yet ruled on the legal question at issue and there are differing opinions in the case law of the fiscal courts or in the literature.
- The senates of the Federal Fiscal Court have ruled differently or contradictorily.
- The legal situation, which has not been clarified by the highest courts, is unclear because the tax authorities have not ruled on it uniformly and concerns have been raised in the literature about the practice of the tax offices.
- The tax office has not observed the case law of the Federal Fiscal Court.
- The tax office has violated essential procedural rules to your disadvantage.
- The tax office presented the facts of the case in an inadequate manner.
- The tax office assumed that the facts of the case were incorrect and you present new facts.
However, in the event of a suspension, you must bear in mind that you will have to pay suspension interest if you lose the appeal proceedings. Currently, 0.5% is assessed for each full month.
In the case of an objection, the tax office is forced to examine the entire assessment. In doing so, it may become apparent, for example, that you were wrongly granted a benefit. You might then have to pay more than before. However, if this is the case, the tax office must inform you of this beforehand. You then still have the option of withdrawing your objection if necessary.
Conclusion of the out-of-court appeal procedure
If the tax office has acknowledged your grounds for objection, you will receive a new, corrected tax assessment. If the tax office considers your objection to be unfounded, it will probably ask you to withdraw it. If you then withdraw your objection, the matter is closed. If your objection is rejected, the tax office will send you a formal objection decision, against which you can then take legal action.
You can lodge an appeal within one month of receipt of the tax assessment. The objection is initially effective even without stating reasons. Reasons may be submitted subsequently within a reasonable period of time.
Restitutio in integrum
If you have missed the deadline for filing an objection through no fault of your own, you can apply to the tax office for restitutio in integrum. You will then be placed in the same position as if the notice had just been issued.
If the tax office has deviated from your tax return without first hearing you or pointing this out in the tax assessment, you are entitled to reinstatement of the previous status within one year.
If the tax office sets you a deadline
The tax office can set you a reasonable deadline within which you must submit further documents, for example. The tax office may then no longer take into account any explanations or evidence submitted late in your favor in the objection procedure. If you do not have enough time, you should apply for an extension of the deadline before it expires.