Legal action by tax consultants by fax is permissible despite the possibility of applying for best tax via “Fast Lane” (FG)

Online message – Thursday 04/20/2023

Procedural Law | Legal action by tax consultants by fax is permissible despite the possibility of applying for best tax via “Fast Lane” (FG)

A lawsuit filed in January 2023 by a tax consultant for his client by fax is permissible if he had not yet received the registration letter, but had also not submitted a “fast lane application” (FG Münster, interim court decision v.
14.4.2023 – 7 K 86/23 E; revision approved).

Background:
Tax consultants must in principle since
1.1.2023 communicate electronically with the FG with the result that filing a complaint by letter or fax is inadmissible. Prerequisite is after
§ 52d sentence 2 FGOthat a secure transmission path “is available”. The Federal Chamber of Tax Advisors makes this available in the form of the special electronic tax advisor mailbox (beSt), although it only sent the registration requests for setting up the beSt to the tax advisors in the first quarter of 2023. However, they had the opportunity to submit a so-called “fast lane application” in order to receive the registration letter early.

The FG Münster explains:

• The obligation to use the best tax, which cannot be determined abstractly but only specifically for each individual professional, comes into play when the Chamber of Tax Advisors has sent the registration request to the tax advisor. Only from this point in time is a secure transmission path “available” within the meaning of the law. It does not depend on the actual setup of the beSt, as otherwise the tax consultants could permanently evade their obligation to use it.

• However, the mere possibility of speeding up the sending of the registration request by means of a “fast-lane request” is not sufficient for the obligation to use to arise. The Federal Chamber of Tax Advisors is solely responsible for processing the dispatch of the registration requests. In this respect, the law does not provide for any obligation for the individual professional to cooperate in order to speed up the dispatch. With this point of view, the FG Münster opposed other financial court decisions. This is also supported by a comparison with lawyers who
  § 52d sentence 1 FGO have been obliged to use the special lawyer mailbox since 2022 without any further requirements. The individual professionals cannot be blamed for the fact that the Federal Chamber of Tax Advisors, which in this respect acts as a sovereign, only sent the registration requests successively in several tranches in the course of the first quarter of 2023.

• The explanatory memorandum to the law does not mean that the obligation to use, according to the legislature’s idea, begins abstractly from
  1.1.2023 applies to all professionals. A stricter, abstract interpretation also violates the constitutionally guaranteed right to effective legal protection, since in individual cases something that is factually impossible would be demanded of tax consultants.

Those: FG Münster, press release from 20.4.2023 (RD)

Source(s):
NWB OAAAJ-38113