If an application for binding information is withdrawn, AEAO does not result in a reduction of the estimate to zero in accordance with § 89 no. 4.5.2, as the fee reduction (§ 89, subsection 7, point 2 AO) is based on the assessment. of a time fee.
Background: Withdrawal of application for binding information
X-KG is based in Germany. As several of its shareholders planned to establish a second home abroad, the KG Tax Office requested binding information, in particular on the tax decoupling of its holdings.
The application led to extensive legal checks from the Tax Office, the State Office for Taxes and the State Ministry of Finance. Alternative scenarios were also discussed. However, the tax authorities maintained that the request for the issuance of binding information should be rejected.
KG then withdrew its application for the issuance of binding information, as the shareholders had in the meantime refrained from moving their place of residence abroad.
The FA set a fee of EUR 98,762 for processing the request for information pursuant to § 89, subsection 3-7, AO. The FA assumed an object value of DKK 30 million. EUR (maximum amount), which would have justified a fee of EUR 109,736. However, it was due to the withdrawal of the application – based on the previous one processing effort of 156 hours, if 10 to 15 hours are required – appropriate to reduce the fee by 10% to EUR 98,762 (§ 89, paragraph 7, § 2 AO; AEAO to § 89, no. 4.5.2).
KG’s lawsuit to reduce the fee to EUR 15,600 was successful. The FG said that the purpose of charging the benefit was lost due to the withdrawal of the application so that it was based only on the purpose of the charging. cost recovery arrive. This leads to a Discretionary reduction to zero in the way that only the time fee is billed at an amount of EUR 15,600 (156 hours x EUR 100 per hour).
Decision: Approximation of the reduced value fee
The revision of the FA is justified. BFH overturned the FG judgment and dismissed the lawsuit. The contested decision, in which the tax office set the fee at EUR 98,762, is free from errors of judgment.
No limitation of the fee on the time fee
AEAO to § 89 No. 4.5.2 (only) prescribes that the processing effort incurred until the withdrawal of the application is “duly” taken into account and that the fee is reduced “pro rata”. The regulation does not contain further specifications for the concrete calculation of the reduction. So you can no general limitation of the time fee be removed. On the other hand, the regulation also applies to one proportional reduction of the value charge in the relationship between the previous and the still outstanding processing effort. Otherwise, the reduction refers to section 89, subsection 7, sentence 2 AO to the “fee” (also AEAO to § 89 no. 4.5.2). As a starting point, this can only mean the fee that previously appeared in section 89, subsection 4-6. However, a fundamental change from the value to the time fee (or vice versa) is not planned.
No reduction of estimates to zero
The fee objectives pursued by the legislature also do not lead to the discretionary reduction to zero that FG assumes. The obligation to pay a fee has two fee purposes Treatment of cost recovery of the application and Skimming the benefit obtained by the applicant (BFH of 22 April 2015, IV R 13/12, BStBl II 2015, p. 989).
Although the aspect of skimming benefits does not come into play when the application is withdrawn, this does not mean that only the cost-covering function must be taken into account when charging fees (see also BFH of 9 March 2016, IR 66/14, BStBl II 2016, p. 706). Due to the withdrawal of the application, there is neither the desired binding effect of positive information nor a negative decision that can be appealed. But even in the event that negative information appears, the applicant remains exploitation of avoidance of an impending tax burden, by not realizing the planned situation (cf. BFH of 22 April 2015, IV R 13/12, BStBl II 2015, p. 989). In the event of a dispute, this advantage is enhanced by the fact that alternative configurations of facts were also discussed as part of the information procedure.
Calculation of value charge
For the fee reduction according to section 89, subsection 7, point 2 AO, the FA has correctly taken as its starting point the value charge according to § 89, subsection 4 AO. The requirements for charging a time fee according to section 89, subsection 6, AO was not fulfilled. The reduction made by the FA according to the ratio between the previous and the still outstanding processing effort is compatible with the requirements of the discretionary AEAO for § 89 No. 4.5.2 and the fee purposes. The processing time of 156 hours held so far contrasts with the expected processing time of 10 to 15 hours. This leads to the one adopted by the FA Reduction of value charge at 10 %.
Note: No violation of the principle of proportionality
By exercising its discretion, the FA has not violated the principle of proportionality and what is derived from it the equivalence principle violated, according to which the fees must not be disproportionate to the service offered by the public sector (BFH of 30 March 2011, IR 61/10, BStBl II 2011, p. 536). That the value fee reduced to EUR 98,762 is 6.3 times the pure time fee is not sufficient for this.
The FA also rightly believed that even with a negative report basically full value fee would be incurred (BFH of 22 April 2015, IV R 13/12, BStBl II 2015, p. 989; loc. Seer in Tipke/Kruse, AO, § 89 AO Rz 70) and despite the withdrawal of the application Fee purpose with benefit skimming is not completely eliminated.
BFH, judgment of 05/04/2022, IR 46/18, published on 25/05/2022
All decisions from BFH published on 25 August 2022 with brief comments