Should you already have everything behind you and eagerly await your tax return? Then pass your waiting time briefly and read through here why your tax office is sometimes not allowed to change the notice against you.

Investigative error by the tax office? There is no change in your tax return!

Once the tax return has been issued, it can only be amended to your detriment under certain circumstances. Here, the tax office has strict limits within which it must operate. If, for example, the tax assessment was issued subject to review or provisionally, the tax office can readjust it again — also to your detriment.

However, if there is no such reservation or provisional provision, one or the other tax official then tries to justify his amendment in the decision on the basis that he would now have facts that have only now become known to him. This allows him to make an amendment in accordance with Section 173 of the Tax Code (AO). The tax authorities usually get away with it. But there are exceptions. If the tax office has breached its investigative obligation, an amendment under §173 AO is not possible — this has currently been decided by the Federal Court of Justice.

Therefore, if the fact that became known to the tax office only retrospectively could have been known earlier (at the time of filing the tax return) if the tax office had properly investigated, this prevents a subsequent change of the decision to the detriment of the taxpayer (the principle of good faith plays a role here).

However, you can only rely on this if you have fulfilled your obligation to cooperate beforehand (judgment of 29.11.2017, II R 52/15). The case was as follows.
Three plaintiffs who had become heirs to their mother in equal parts. Among other things, rental and commercial properties were inherited here. To determine the inheritance tax, all three heirs had to provide information about the properties. To keep things simple, the tax office refrained from providing detailed explanations. Tadaaaa... And an on-site audit by the tax office already revealed a problem. The properties had a higher value than that determined by the Office on the basis of the information provided by the heirs.
However, the heirs had answered correctly and completely.
After the tax office amended the tax assessment, the Federal Court of Justice opposes the office here.

If the tax office should have obvious ambiguities or questions of doubt that should have arisen when examining the tax return and when reviewing the submitted documents, it breaches its investigative obligation if it does not pursue them. Therefore, if the tax office works with certain information and waives a formal declaration from the taxpayer, although the information provided is unlikely to be sufficient for a relevant tax collection, the tax office is violating its investigative obligation. This is the case even if it does not ask any further questions before issuing the decision.

If the taxpayer fulfills his obligation to cooperate by correctly and completely answering the questions (from the tax office), the Office is prevented in good faith from making an amendment to the tax assessment that is already final (Section 173 (1) No. 1 AO) if it later becomes aware of tax-increasing facts. In such a case, the taxpayer is not responsible for whether the required information from the tax office is sufficient for a tax assessment. As a result, the taxpayer cannot know whether more information would have been required or not. According to the Federal Court of Justice, it is clearly the task of the tax office to ask the relevant questions.

Tax heartache box

The change made by the tax office due to new facts is likely to be made more difficult by this judgment. If you yourself are affected, you should check (Have it checked) whether or not the tax office has breached investigative obligations.

But beware, if you knowingly violate your obligation to cooperate, you cannot avoid a change in accordance with §173 AO. With luck, the statute of limitations will help you here. We offer a free service here with our cooperation partner TaxCollector. The tax office will check your tax return and then decide with you whether it is okay or whether you should file an appeal. Here Get more information about this service.

Your CrewLife team