Objection withdrawn if notification is made out of imagination for 3 days | Guidance

A written administrative act sent by post in Germany is deemed to have been made public on the third day after its publication, unless it has been received or received at a later time (§ 122 para 2 AO).

The FG in Lower Saxony was to decide whether clause 362 para 1 AO (the objection can be withdrawn until the decision on the objection is announced). In conjunction with Section 122(2) AO, the withdrawal of the objection to avoid a prejudicial decision on the objection remains in effect until the end of the notification day even if physical access occurs outside the three-day period.

Strengthening the opposition’s decision outside the three-day imagination

As part of the objection procedure, the tax office issued a malicious objection decision with a simple letter. The plaintiff did not clearly receive the objection decision until three days had elapsed. On the evening of the receiving day, the plaintiff withdrew his objection.

The tax office indicates the time and later withdraw the objection

The Tax Office considered it indisputable that the objection decision was not announced within 3 days of imagination. Therefore, the actual receipt leads to disclosure and it is clear in this context that the decision on the opposition had already reached the plaintiff before the opposition was withdrawn.

A violation of the principle of equality cannot be assumed in this case. Because the general case law in Section 122 AO is based on the idea that the three-day period is a deadline i. sd. § 108 Paragraph 3 AO. However, this consideration cannot be applied here, because the illusion of notification does not apply if the postal item is received only after the expiration of the three days mentioned there. In this case, according to the explicit formulation, the actual time of arrival is all that matters.

FJ: Until the end of the day it will do the trick

Lower Saxony FG sees this differently (judgment 14 June 2021, 9 K 168/20). The objection is withdrawn in a timely manner before the end of the notification day and thus becomes effective. Withdrawal of the objection effectively invalidates the objection decision. If an opposition decision is actually received earlier than the third day after its publication, then this earlier actual notification is legally irrelevant because the notification in the case of Section 122 (2) No. 1 AO is not only presumed, but ultimately fictitious, on the third day.

Because with the illusion of arrival, the legislator wants to exclude as much as possible a dispute about the exact time of the incoming mail – in favor of the addressee or at his expense. This means that the objection can still be withdrawn until the end of the third day if the corrective objection decision is received on the first or second day after its publication.

The wording could talk about that, but…

The Lower Tax Court recognizes that the wording of Section 122(2) AO (unless received or later received) can indicate that the Legislature has set a disclosure time outside the imagination of 3 days. Meaning a specific time within a day (exactly in hours, minutes and seconds) and the end of that day is not accepted as the notification time. According to the understanding of the case law of the highest court, an administrative action has been received if it enters the sphere of influence of the addressee of the disclosure (such as an apartment, a mailbox) in such a way that it is ordinarily possible to be surrounded and can also be foreseen according to the custom of legal transactions.

For both systematic and constitutional teleological and legal considerations, the FG—in contrast to the sound taken from the literature (Birkenfeld in: Hübschmann/Hepp/Spitaler, AO/FGO; Status: 190th Lfg. June 2006, § 362 AO margin no. 65)—is an interpretation True so that an announcement outside the Three Days narrative can only be assumed at the end of the day of actual arrival. There are several reasons for this.

Among other things, FG also considers it necessary for reasons of equal treatment. If one were to understand the connection to the “notice” in such a way as to be taken into account outside the account of the three days, the hour, the minute and the second specific time of arrival, then this means that only the taxpayer, without action on their part and fault due to unusual circumstances, receives a decision objection more than three days after publication, they are completely excluded from the possibility of preventing the enhanced effect later on the day of receipt. The Tax Court does not consider that such discrimination and legal detriment to a small group of taxpayers in a similar situation can be justified, at least if the Tax Office opts for simple notification by simple letter by mail to all equally objectors.

Review proceedings pending at BFH

As far as can be seen, the question of the formal requirements for withdrawing an objection received by the Tax Office on the day the objection decision is actually received outside the imaginary three-day period has not been the subject of a financial case yet in law. Therefore, the FG allowed a revision, which was also submitted (IX R 16/21).

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