Ask a tax advisor on the topic of Income tax return

No automatic loss carryback by the tax office - Is it still possible to report the losses later?

February 19, 2015 | 25,00 EUR | answered by Anton Pernitschka

Dear Sir or Madam,

the following situation:

Income tax assessment for 2010 (dated 25.11.2011) by Tax Office A:
Taxable income: 35,000 euros

Assessment for 2011 on the separate determination of tax bases by Tax Office A (dated 17.10.2013):
Income from self-employment: -7,000 euros

Income tax assessment for 2011 (dated 13.11.2013) by Tax Office B (due to relocation Tax Office A only responsible for self-employment):
Taxable income: -9,000 euros (taking into account the assessment dated 17.10.2013)

The tax return forms always only stated "income tax return", not "declaration for the determination of the remaining loss carryforward".

In my opinion, a separate loss determination by the Tax Office should have been automatically carried out (in accordance with § 10d EStG) and a loss carryback to the year 2010. This did not happen.

In the case of a final tax assessment, it is still possible to report the losses within the four-year assessment period for the tax assessment (BFHZ judgment dated 17.9.2008, IX R 70/06, BFH/NV 2009, p. 65). In this specific case, however, the losses were already claimed together with the tax returns.

1) Can a loss carryback still be obtained (temporally and in content)?

If yes, how?

2) Informal letter to the Tax Office requesting a separate loss determination?

3) Submission of a "declaration for the determination of the remaining loss carryforward"? So, an identical declaration, but this time not "income tax return" ticked on the form, but "declaration for the determination of the remaining loss carryforward".

4) Is further justification / reference to legal provisions / judgments necessary?

Thank you!

Anton Pernitschka

Dear inquirer,

In the context of an initial consultation and your fee commitment, while observing the regulations of this forum, I would like to answer your questions.

The loss carryback must be carried out ex officio according to § 10 d para. 1 EStG. This can be deviated from - upon request by the taxpayer.

The tax office responsible for the separate determination of the loss carryforward is the tax office responsible for taxation. When determining the remaining loss carryforward, the taxation bases must be taken into account as they were used for the tax assessments of the assessment period in which the remaining loss carryforward is determined, and of the assessment period in which a loss carryback can be made.

A separate determination can also be made according to § 181 para. 5 AO even after the expiration of the deadline for which it applies, insofar as the separate determination is relevant for a tax assessment for which the assessment deadline has not yet expired at the time of the separate determination.

In your case, a loss carryback can still be obtained. You can request the tax office in writing to issue a corresponding decision on the separate determination of the loss carryforward. A phone call might also suffice.

The answer was given based on your description of the situation. Missing or incorrect information about the actual circumstances can affect the legal outcome.

Sincerely,

Anton Pernitschka
Tax consultant