Estimated tax assessments
October 21, 2009 | 15,00 EUR | answered by Oliver Burchardt
Hello and good day,
I have a learning problem with the AO and maybe someone can help me:
Facts: Corporate tax assessment 2007 and trade tax assessment 2007 of 2.4.09 are both estimated at €5000 according to §162 AO partially provisional (Note: Budget Accompanying Act). No objection was filed. The declaration was submitted on 10.5.2009 and shows a profit of €1,000.
Notes on previous years: Loss 2004 - €6,300, Profit 2005 €4,200, Profit 2006 €1,700.
Question: Will these assessments be changed in favor of the taxpayer by the tax office?
My opinion is NO: The assessments are final as of 5.5.2009, as no objection was filed.
However: 1. According to §172 AO: assessments can be corrected by the authority after their announcement and even after they have become final. Administrative procedures as mass procedures lack the thoroughness of judicial procedures, so the risk of unlawful decisions is significantly higher. Administrative authorities are not strictly bound by their assessments...
Could the tax office therefore change the assessment?
2. Could one also file a request for nullity according to §125 para. 5 AO as a possible penalty assessment is present? Is there a specific amount that constitutes a penalty assessment, is this known in any way?
It would be great if you could help me.
Best regards,
Inge Schaale
Dear Mrs. Schaale,
Since you mention having a learning problem in tax law, I will answer the question assuming that there is no real tax situation underlying it. In a real scenario, the use of 15 euros would not be appropriate.
With that said, I will answer your question as follows:
§ 162 AO is not a norm for amendment, but rather an authorization norm that empowers the tax authorities to estimate the taxable bases. Therefore, I assume that you are referring to the provisional nature under § 165 AO.
Changes in the taxable bases are not covered by the provisional note, so the finality has occurred after 4 weeks. A change in the tax assessments requires a norm for amendment. In this regard, § 172 AO is primarily a norm that allows for changes when certain factual elements are present or by referring to other amendment norms (§§ 173 ff. AO). That is exactly what the provision means: if there are errors in the tax assessment, the finality can be broken in narrowly defined exceptional cases. However, a change requires a detailed description of the facts that allows you to examine other amendment norms. If nothing further is described, a change is not possible.
§ 125 (5) AO is also not an independent norm, but is closely related to the rest of the paragraph. Only if one of the factual requirements mentioned in paragraphs 1 and 2 is present, can nullity be given. Paragraph 5 only regulates that the tax office can determine nullity in this context (and that there may be a right to such a determination).
Whether a penalty estimate is even present and whether the consequence is nullity must be explicitly described in the facts. Assuming a penalty estimate with nullity consequence in an exam is not recommended.
I hope this helps and wish you success in your preparation.
Sincerely,
Oliver Burchardt
Tax consultant
