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Never seen before! Federal Fiscal Court approves for the first time appeal against false certification in the post-delivery certificate.

I. FACTS OF THE CASE:

With his action, the appellant claims restitutio ad integrum due to the non-delivery of a decision of the tax and revenue office regarding an alleged post-delivery certificate.

The appellant had lodged an appeal on 9 June 2011 against the changed tax assessments of 11 May 2011. These were based on the tax investigation office’s inquiries into the “O2 cases”. There, the Munich tax investigation office assigns financial ownership of fees payable for the work of freelance engineers, for which agencies had invoiced O2 and which the agencies had collected in overseas accounts, to the freelance engineers. The legal question of whether, in cases of conflict, financial ownership of payments from domestic end users to non-domicile agencies is to be assigned to a third party on the basis of an estimate of probabilities from investigations of the group, independent of the extent and timing of the agency payment to the third party and independent of the enforceability of a pecuniary claim from the third party, is pending review by the supreme court.

According to the appellant’s attorney of record, the tax and revenue office served the decision allegedly dated to 19.12.2012 on the 20.12.2012. The same denied delivery avowedly and with the production of evidence. A repeated delivery suggested by the department of inquiry failed upon the intervention of the legal redress office.

The Munich fiscal court upheld the position of the tax and revenue office and rejected the application for restitutio in integro.

II. DECISION OF THE FEDERAL FISCAL COURT:

On the appeal of the appellant regarding the rejection of the original appeal, the Federal Fiscal Court reversed the judgement of the fiscal court and remanded the matter to the fiscal court.

The disputed judgement rests on a procedural violation (§ 115 para. 2 No. 3 FGO – Tax Court Code); it violated the appellant’s right to be granted a fair hearing (Art. 103 para. 1 GG – Federal Constitution, §§ 96 para. 2, 119 No. 3 FGO).

Per existing Federal Fiscal Court case law, a procedural violation would exist if the fiscal court makes an assumption from a particular fact on the basis of anticipated appraisals of the evidence, without corresponding fact-finding measures and contrary to the assertion of some party.

Such is the case here.

The fiscal court made the assumption that the tax and revenue office had given notice of the relevant decision via Deutsche Post, using delivery methods in accordance with § 122 para. 5 AO – German Fiscal Code in conjunction with § 3 para. 1 VwZG – German Law on Service in Administrative Procedures. On this basis, it upheld that the decision had been delivered by placing the writ in the post box belonging to the office complex, as proved by the post-delivery certificate, because handing it to the recipient was not possible (§ 3 para. 2 VwZG) in connection with § 180 sentence 2 ZPO (German Code of Civil Procedure).

The fiscal court came to this finding in a procedurally incorrect manner.

Indeed, the post-delivery certificate, as an official deed (§ 418 para. 1 ZPO), ordinarily provides proof of delivery. A false certification cannot therefore be proven purely by the assertion of a sequence of events contrary to the certified one. To this end, it is all the more necessary to demonstrate an alternative course of events to the official one and to substantiate this course of events, particularly if the appellant can demonstrate conditions which are sufficient to demonstrate misconduct by the post office during the delivery and therefore the occurrence of false certification in the post-delivery certificate.

This is the case in the case in question. The appellant’s attorney of record has in the first instance made submissions regarding the consistent occupation of the office on the alleged day of delivery and regarding the architectural design of the office, which would exclude the possibility that – as represented in the post-delivery certificate – delivery could not have been achieved by handover in the business area of the office on the day of delivery.

Indeed, the fiscal court accepts that this submission is “true”. Nevertheless, “considering general experience”, it has not ruled out the possibility that delivery per § 180 sentence 1 ZPO to the place of business’s letterbox was permitted and required. To this end, the fiscal court has not treated the alleged fact as true, but effectively considered the converse to already have been proven.

Likewise, therein lies an unwarranted pre-emption of the evidence offered by the appellant’s side for its presentation of the facts of the matter. The tax and revenue service must investigate the facts from the agency (§ 76 para. 1 FGO). It is not bound in this matter to the affected parties’ submissions and requests to present evidence. It may however ordinarily waive a hearing of the deponents named by the parties only if it assumes the circumstances to be testified by the deponents to be wholly correct to the benefit of the affected party. Therefore, a truthful allegation would lift the need for the collection of evidence only if the court genuinely treated the alleged facts as true and did not act in a contradictory fashion. It also cannot be ruled out that the fiscal court would arrive at a different conclusion after questioning the witnesses.

III. AUTHOR’S COMMENT:

The Federal Fiscal Court has considered the strict requirements for the substantiated presentation of a different course of action as stated in the delivery certificate to be fulfilled.

In this respect, the firm’s precise opening hours on the contested delivery day, as well as the presence of the lawyers’ employees, as well as the company-wide process procedures for inbound processing and deadline control, were carried out and proved for each individual fact. Corresponding documentation and control mechanisms are just as important as the dispute. The architectural design of the office was likewise to be substantiated with floor plans and photos. This was also motivated by the location of the office in an office complex with a number of parties and a common letterbox system on the ground floor. That delivery by Deutsche Post, particularly in the pre-Christmas period relevant to the dispute, is substantially defective was demonstrated by the presentation of original reporting by NDR Television from 3 December 2014.

To conclude, the key fact is that the widespread practice of postal workers to deliver letters regarding post-delivery certificates into some letterbox, without first having undertaken to personally deliver them to a consistently occupied office, provokes legal disputes such as the present one. It would be welcome if the revenue authorities were to account for this state of affairs within the scope of their due exercise of discretion and if they were to remedy taxpayers’ desire for legal protection in a way which avoided litigation.

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