How do fringe benefits affect the tax?

interest

Table of Contents

1 General overview
2 Constitutionally compliant amount of the statutory interest rate
3 The full interest rate according to § 233a AO
3.1 Calculation of Interest
3.2 Calculation of interest when correcting the tax assessment
3.3 Calculation of interest when correcting sales tax assessments in property developer cases (§ 13b UStG)
3.4 Calculation of interest in cases of non-assessment
3.5 Interest run in the event that a requirement for the investment deduction no longer applies retrospectively
3.6 Tax credit wrongly not paid out
3.7 Relationship to other ancillary tax benefits
3.8 Income tax treatment of reimbursement interest
3.9 Measures of equity according to §§ 163 and 227 AO
3.10 Remedies
4 deferred interest
4.1 Calculation of Interest
4.2 Calculation of interest when correcting the tax assessment
4.3 Calculation of interest in the event of early or late repayment
4.4 Calculation of interest when the deferral is lifted
4.5 Equity Measures
5 Interest on evaded taxes
5.1 Subject and conditions of interest
5.2 Interest debtors
5.3 Calculation of Interest
5.4 Calculation of interest when correcting the tax assessment
5.5 Statute of Limitations
6 Litigation interest on reimbursement amounts
6.1 Subject and condition of interest
6.2 Start and end of interest
6.3 Start of the deadline for child benefit proceedings
6.4 Interest claim even without interest loss
7 Interest on suspension of execution
7.1 Requirements, start and end of interest
7.2 Purpose of Interest
7.3 Calculation of interest when correcting the tax assessment
8 Interest on VAT surpluses according to the VAT system guideline
9 Related Lexicon Articles

1. General overview

Sections 233 ff. AO regulate the interest on claims from the tax liability relationship. Interest may be charged in the following cases:

  • Interest from additional tax claims and tax refunds according to § 233a AO (full interest);

  • Deferred interest according to § 234 AO;

  • Interest on evaded taxes according to § 235 AO (→ tax evasion, → voluntary disclosure);

  • Litigation interest on reimbursement amounts according to § 236 AO;

  • Interest on → suspension of execution according to § 237 AO.

According to § 233 sentence 1 AO, claims from the tax liability relationship only earn interest insofar as this is required by law. Sections 233a to 237 AO contain a number of interest rates for certain constellations. The interest balances form a final catalog. Additional tax benefits are not subject to interest.

All interest amounts to 0.5% for each full month of the respective interest run. A full interest month within the meaning of Section 238 (1) sentence 2 AO is reached if the number of the day on which the interest run ends corresponds to the day preceding the day on which the period began (BFH of July 24, 1996, XR 119/92, BStBl II 1997, 6). If the interest run started e.g. on 1.4. and was the tax assessment on April 30th. announced, a full month of interest has already been given. To calculate the interest, the amount to be charged for each type of tax is rounded to the nearest amount divisible by € 50 (Section 238 (2) AO).

Interest is set by written notification. However, it is only fixed if the interest is at least € 10 (Section 239 (2) AO). Interest is on full euros to the benefit of the taxpayer. to be set rounded off.

After the one-year assessment period (Section 239 (1) sentence 1 AO), interest can no longer be assessed. The suspension of follow-up notices in accordance with Section 171 (10) sentence 1 AO is superseded by the special provisions in Section 239 (1) sentences 1 to 3 AO in the ratio of the income tax assessment to the interest notice according to Section 233a AO (BFH judgment of January 16, 2019, XR 30/17, BStBl II 2019, 362). If, on the other hand, an interest notice is issued as a follow-up notice to a basic interest notice, the deadline for the notice of interest according to Section 171 (10) sentence 1 AO does not end before two years after the notification of the basic interest notice.

The claim to fixed interest expires when the payment is statute-barred, but possibly earlier when the main claim expires (Section 232 AO).

2. Constitutional amount of the statutory interest rate

With the judgment of July 1, 2014 (IX R 31/13, BFHE 246, 193, BStBl II 2014, 925), the IX. Senate of the BFH does not consider the statutory interest rate of 0.5% per month (6% per year) for periods up to March 2011 to be unconstitutional. The amount of additional interest (Section 233a (1) sentence 1 in conjunction with Section 238 (1) sentence 1 AO) for interest periods falling in 2013 does not violate either the principle of equality or the prohibition of excess (BFH judgment of November 9, 2017, III R 10 / 16, BStBl II 2018, 255). However, in a suspension procedure, the BFH ruled that there were serious constitutional doubts regarding the amount of interest of 0.5% for each full month regulated in Section 238 (1) sentence 1 AO, at least from the 2015 assessment period (BFH decision of 25.4. 2018, IX B 21/18, BStBl II 2018, 415). For Interest periods from April 1, 2015 this judgment is to be applied at the request of the interest debtor in all cases in which an objection has been lodged against an enforceable interest rate, in which the interest rate is based on Section 238 (1) sentence 1 AO (BMF letter of 14.6.2018, IV A 3 -S 0465/18 / 10005-01, FMNR256000018, BStBl I 2018, 722; LEXinform 5236636). It is irrelevant for which type of tax and for which tax period the interest was set. In the case of an interest period that begins before April 1, 2015 and ends after April 1, 2015, the suspension of execution is only to be granted for the interest portion that falls from April 1, 2015 to the end of the interest period. The suspension of enforcement ends one month after notification of a general ruling in accordance with Section 367 (2b) of the AO, insofar as the objection is rejected by the general ruling.

With a resolution of September 3, 2018 (VIII B 15/18, BFH / NV 2018, 1279), the BFH decided that the application for AdV of notices also for the setting of interest for previous dispute periods from 2012 must be complied with. The BFH decisions of April 25, 2018 (loc. Cit.), Of September 3, 2018 (loc. Cit.) And of July 4, 2019 (VIII B 128/18, BFH / NV 2019, 1060) are according to BMF letter of November 27, 2019 (BStBl I 2019, 1266) for interest periods from 1.1.2012 (only) at the request of the interest debtor in all cases in which an objection is lodged against an enforceable interest rate based on the interest rate according to § 238 Paragraph 1 Clause 1 AO has been. It is irrelevant for which type of tax and for which tax period the interest was set.

In a letter dated May 4, 2019 (IV A 3-S 0338/18/10002, 2018/0724353, BStBl I 2019, 448), the Federal Ministry of Finance instructed the tax authorities that all initial interest rates in which the interest rate pursuant to Section 238 Para 1 sentence 1 AO is applied at 0.5% per month, with regard to the constitutionality of the interest rate iHv 0.5% per month (§ 238 Paragraph 1 Sentence 1 AO) are to be carried out provisionally in accordance with § 165 Paragraph 1 Sentence 2 No. 3 AO in conjunction with § 239 Paragraph 1 Sentence 1 AO (→ preliminary tax assessment). The declaration of provisionality covers both the question of whether the cited statutory provision is compatible with higher-ranking law, as well as the case that the Federal Constitutional Court decides the constitutional issue at issue by interpreting the legal provision cited in conformity with the constitution (BFH judgment of 30.9.2010, III R 39 / 08, BStBl II 2011, 11). The provisional declaration is only made for procedural reasons. It is not to be understood to mean that the statutory provision cited in the provisional notice is viewed as unconstitutional. Furthermore, it is not to be understood as meaning that the tax authorities consider it possible that the Federal Constitutional Court could interpret the legal norm cited in the provisional note against its wording. If, on the basis of a relevant decision by the Federal Constitutional Court, this interest rate setting should be repealed or changed, the repeal or change will be ex officio; an objection is therefore not required in this respect. Depending on the decision of the Federal Constitutional Court, it may also be repealed or changed to your disadvantage.

3. The full interest rate according to § 233a AO

3.1. Interest calculation

The full interest rate is intended to compensate for the fact that the taxes are set and levied at different points in time, despite the same statutory time of origin. The interest rate is regularly linked to the tax assessment. Interest is limited to income tax, corporation tax, sales tax and trade tax. Tax prepayments and tax deductions are excluded from interest (Section 233a (1) sentence 2 AO). § 233a AO is limited to the interest on the claims of the taxes listed in paragraph 1. The regulation area of ​​§ 233a AO does not refer to tax payments (BFH judgment of February 23, 2006, III R 66/03, BStBl II 2006, 741). The right to an investment allowance does not bear interest.

The interest run usually begins 15 months after the end of the calendar year in which the tax was incurred. It ends at the end of the day on which the tax assessment takes effect (Section 233a (2) sentence 3 AO). In principle, tax assessments take effect on the day the tax assessment notice is issued (Section 122 (1) in conjunction with Section 124 AO). The interest rate according to § 233a AO ends at the end of the third day after the tax assessment has been sent to the post office (notification of the administrative act within the meaning of Section 122 (2) AO), even if the tax assessment is actually received earlier (BFH judgment of 13.12.2000, XR 96/98, BStBl II 2001, 274). In the case of VAT declarations with a difference to the detriment of the taxpayer. the interest run ends on the day of receipt of the → tax return (§ 168 sentence 1 AO).

Example 1:

The income tax notification for calendar year 06 will be sent to the post on November 12, 2008 (Thursday).

Solution 1:

In accordance with Section 36 (1) of the EStG, the income tax 06 is created at the end of December 31, 2006. The interest period begins 15 months after the end of the calendar year in which the tax was incurred. The interest run thus begins on April 1st, 2008. It ends with the announcement of the tax assessment. According to Section 122 (2) No. 1 AO, the tax assessment is deemed to have been announced three days after it was posted to the post (Sunday). Since the end falls on a Sunday, the decision is deemed to have been announced on Monday, November 16, 2008 (BFH judgment of October 14, 2003, IX R 68/98, BStBl II 2003, 898). Since the interest only accrues for full calendar months, 0.5% interest must be calculated for a total of seven calendar months.

The basis of assessment for calculating interest is the difference between the tax rate less tax deductions and the amount of the advance payment. The prepayments set up until the start of the interest period are decisive (Section 233a (3) AO).

Example 2:

The Stpfl. In example 1, advance payments of € 6,500 have to be made in advance for DC 2006. The prepayment for the 4th quarter (due date 10.12.06) has to be paid by the taxpayer. not yet paid. The income tax notification announced on November 20, 2008 was settled as follows:

fixed tax 06

42 000 €

less deductible tax deductions

./. 2 000 €

remain

40 000 €

Less advance payments made so far (Section 36 (2) No. 1 EStG) 3 × € 6 500 =

./. 19 500 €

still to pay

20 500 €

of which immediately (outstanding prepayment)

6 500 €

The remaining amount

14 000 €

is due one month after the notification of the tax assessment according to § 36 Abs. 4 EStG. The amount is therefore due at the end of December 20, 2008. Since this is a Sunday, the deadline according to Section 108 (3) AO is extended to the next working day.

The tax base for calculating the interest is determined as follows:

fixed tax 06

42 000 €

less deductible tax deductions

./. 2 000 €

remain

40 000 €

less fixed advance payments

./. 26 000 €

Difference

14 000 €

Interest is to be paid to € 14,000 in favor of the taxpayer. for the period from 1.4.08 to 20.11.08 (seven full months × 0.5% = 3.5%). The subsequent payment interest to be determined is 3.5% of € 14,000 = € 490.

A difference in favor of the taxpayer. is also subject to interest. In order to prevent reimbursement interest on fixed but not paid advance payments, interest is only charged on the amount actually to be reimbursed.

Example 3:

The assessed tax in example 2 is only € 16,000. Thereafter, the amount to be charged is:

fixed tax 06

16 000 €

less deductible tax deductions

./. 2 000 €

remain

14 000 €

Less advance payments made so far 3 × 6 500 € =

./. 19 500 €

Lower target

5 500 €

The reimbursement interest is 3.5% of € 5,500 = € 192.50. According to § 239 Abs. 2 AO, the amount is to full euros for the benefit of the taxpayer. to be set rounded. The reimbursement interest is € 193.

3.2. Calculation of interest when correcting the tax assessment

If interest was set on the occasion of a tax assessment, the correction of this tax assessment triggers a change in the previous rate assessment (Section 233a, Paragraph 5, Clause 1, Clause 1 AO). It does not matter what the correction is based on (e.g. also change through an appeal decision or through or due to the decision of a tax court). For Section 233a, Paragraph 5, Clause 4 and Paragraph 3, Clause 3 AO, in the event of multiple changes to tax assessments, the last payment on the tax assessment, which contained the tax base that is no longer applicable due to the amendment, is decisive (see BFH of October 8, 2019, VR 15/18, BFH / NV 2020, 40).

Insofar as the tax assessment is based on the initial consideration of a retrospective event (Section 175 (1) No. 2 AO) or a loss carry-back (→ loss deduction in income tax), the interest run according to Section 233a (2a) AO does not start until 15 months after the end of the fiscal year . in which the retrospective event occurred or the loss occurred.

In the event of a permissible change in the assessment type (joint assessment after an individual assessment or vice versa), both the cancellation of the original assessment (s) and the issuance of the new assessment (s) are based on a retrospective event. This applies regardless of whether it is the applicant spouse or the other spouse. The fact that the procedural implementation of the change of assessment type for the applicant spouse is not carried out in accordance with Section 175 (1) sentence 1 no. 2 AO does not prevent this. Section 233a (2a) AO applies to both spouses when the original assessment (s) are revoked and when the new tax assessment (s) are issued (see AEAO on Section 233a No. 10.2.1; BMF of 31.1. 2019, BStBl I 2019, 84).

If an interest rate was not set in the previous tax assessment, e.g. because the waiting period had not yet expired when the tax assessment became effective, the difference between the new and the previous debit is also decisive for the first interest rate assessment due to the correction of the tax assessment for the calculation of the interest.

3.3. Calculation of interest when correcting sales tax assessments in property developer cases (§ 13b UStG)

The BFH's interpretation of § 13b UStG, which deviates from the administrative opinion, which led to the fact that a property developer who sells or rents out the built-up land, as the recipient of the construction work performed on it, is not liable for tax under § 13b UStG (cf. August 22, 2013, VR 37/10), does not represent a retrospective event within the meaning of Section 175 (1) sentence 1 No. 2 AO (FG Baden-Württemberg judgment of January 17, 2018, 12 K 2324/17, EFG 2018, 599; revision at the BFH: VR 8/18; the appeal was withdrawn, decision of the BFH to terminate the decision of 10.1.2019, VR 8/18). When setting reimbursement interest in the course of correcting the VAT assessment on the part of the property developer, Section 233a (2a) AO does not apply. The interest run does not begin 15 months after the end of the calendar year in which the retroactive event (not present here) occurred.

For the determination of the tax debtor in the case of construction work, it depends exclusively on the prerequisites of § 13b UStG, but not on whether the recipient of the service claims that he is not tax debtor according to this provision, that he pays a tax amount to the contractor providing the service or that FA can offset a claim for reimbursement that results from incorrect application of Section 13b UStG, so that this is not a retroactive event within the meaning of Section 233a (2a) AO (see BFH of October 8, 2019, VR 15/18, BFH / NV 2020, 40; LEXinform 0951856).

3.4. Calculation of interest in non-assessment cases

If an assessment for income tax cannot be carried out because the requirements of § 46 EStG are not met, fixed and made advance payments are to be reimbursed. The reimbursement interest is to be calculated as if a tax assessment above 0 € had taken place. If an income tax assessment that led to a refund is canceled and the statement is changed so that the tax deductions that have been credited up to now are reclaimed, this additional tax claim is subject to interest. A previously carried out rate of interest (reimbursement interest) is to be changed according to § 233a para. 5 sentence 1 AO.

3.5. Interest run if a requirement for the investment deduction is no longer retrospectively

If the investment intention ceases to exist before the investment period has expired, the profit reduction through the investment deduction amount (→ investment deduction amounts according to § 7g EStG) must be reversed. The income tax set for this reason was subject to interest before the entry into force of Section 7g (3) sentence 4 EStG in the version of the Administrative Assistance Directive Implementation Act of June 26, 2013 according to Section 233a (2a) AO (BFH of July 11, 2013, IV R 9/12, BStBl II 2014, 609).

3.6. Tax credit wrongly not paid out

According to the BFH (judgment of December 16, 2009, I R 48/09, BFH / NV 2010, 827), a tax credit that has not been paid out wrongly cannot bear interest according to § 233a AO or any other regulation. The tax code does not contain any general principle that claims of the Stpfl. interest is always due from the tax liability. On the contrary, § 233 sentence 1 AO stipulates that claims from the tax liability relationship only earn interest insofar as this is required by law. For the calculation of interest according to § 233a AO, it does not matter whether and to what extent tax amounts are deferred.

3.7. Relationship to other tax fringe benefits

The collection of Late payment surcharges (§ 240 AO) remains unaffected by § 233a AO, since the full interest only affects the period until the tax is determined. If, in cases in which the tax assessment is initially in favor and then again to the detriment of the taxpayer, is changed, if there are overlaps, half of the late payment surcharges are to be waived.

At the Late payment surcharge (§ 152 AO) is for the assessment of the question, which advantages of the Stpfl. has drawn from the late or omitted submission of the tax return, to take into account that interest advantages can already be partially offset by interest according to § 233a AO.

Overlap of Deferred interest and back payment interest according to § 233a AO can arise if the tax assessment after the deferral has expired initially in favor of and later again in favor of the taxpayer. is changed (see Section 234 (1) sentence 2 AO). In order to avoid double interest, subsequent payment interest that was set for the same period will be offset against deferred interest when setting interest (Section 234 (3) AO). However, if interest is only set after the deferral interest has been set, pursuant to Section 233a AO, subsequent payment interest is to be waived in accordance with Section 227 AO if it was set for the same period as the deferral interest already charged.

Overlaps with Evasion interest (Section 235 AO) are possible, for example because the interest rate begins when the reduction occurs and thus before the tax is determined. Interest according to § 233a AO, which was set for the same period, is to be offset against the evasion interest in the context of the interest rate setting (§ 235 Abs. 4 AO). This applies regardless of the different income tax treatment of both types of interest.

Overlaps with Suspension interest (§ 237 AO) are generally not possible, as interest according to § 233a Paragraphs 1 to 3 AO can only arise for the period up to the determination of the tax, suspension interest, however, at the earliest from the due date of the additional tax claim.

3.8. Income tax treatment of reimbursement interest

Statutory interest paid by the tax office on the basis of income tax refunds to the taxpayer. pays (so-called reimbursement interest) should, according to the BFH judgment of June 15, 2010 (VIII R 33/07, BStBl II 2011, 503), which partially changed the case law, are not subject to income tax insofar as they relate to taxes that are acc § 12 No. 3 EStG are not deductible.

Until 1999, interest on arrears, which the taxpayer. had to pay to the tax office, to be deducted as special expenses. After this regulation was no longer applicable, the interest on the reimbursement had to be taxed as before, while the interest on the arrears could no longer be deducted. That was with many Stpfl. encountered incomprehension. After the change in case law, statutory interest is now charged in the relationship between Stpfl. and tax office for additional income tax payments or reimbursements arise, altogether irrelevant for tax law.

In the event of a dispute, a taxpayer who, on the basis of the same income tax assessment, had to pay non-deductible back payment interest to the tax office and at the same time pay tax on refund interest received from the tax office as income from capital assets, primarily asserted the prohibition of deduction for back payment interest set out in Section 12 No. 3 EStG is unconstitutional.

The BFH has confirmed this statutory prohibition of deductions as constitutional, but has partially changed the assessment of reimbursement interest. Refund interest has so far always been viewed as taxable income from capital assets. The Stpfl. Let the tax office with the ultimately not owed (and therefore later to be reimbursed) tax payment to use capital and receive the reimbursement interest from the tax office in return. The BFH adheres to this case law in principle. However, this does not apply if the tax, as in this case the income tax and the subsequent payment interest due thereon in accordance with Section 12 No. 3 EStG, are excluded from deduction as business expenses or business expenses and are therefore assigned to the non-taxable area with the result that the tax refund at Stpfl. does not generate income. This legal valuation has an impact on the related interest in such a way that reimbursement interest is also not taxable.

The legislature reacted to this decision in the Annual Tax Act 2010 (Federal Law Gazette I 2010, 1768) insofar as Section 20 (1) No. 7 EStG was supplemented by the following sentence 3: "Refund interest within the meaning of Section 233a AO is income within the meaning of sentence 1". This means that the tax offices will continue to subject interest to taxation.

3.9. Equity measures according to §§ 163 and 227 AO

Equity measures with regard to interest may be considered if such measures are also to be taken with regard to the underlying tax. In addition, interest-specific equity measures are also possible (BFH judgment of July 24, 1996, X R 23/94, BFH / NV 1997, 92). When → waiving interest according to § 233a AO for objective reasons of equity within the meaning of §§ 163, 227 AO, it must be taken into account that the origin of the interest claim in terms of the reason and amount according to the literal meaning, context and purpose of the law, the liquidity advantage of the tax debtor and the liquidity disadvantage of the tax creditor, is clearly regulated independently of the specific individual situation and, purely objectively, solely based on the occurrence of certain events (deadline within the meaning of Section 233a Paragraph 2 or 2a AO, difference within the meaning of Section 233a Paragraph 1 Clause 1 in conjunction with Section 233a Paragraph 3 or 5 AO).

The interest rate subsequently fixed value added tax it is not objectively unfair for the performing entrepreneur if, on balance, the tax claim is balanced with the input tax amounts deducted by the recipient of the service (see BFH judgments of January 20, 1997, VR 28/95, BStBl II 1997, 716, and of April 15, 1999, VR 63/97, BFH / NV 1997, 1392).

An interest obligation according to § 233a AO is objectively unreasonable if the supplier could and had to assume, when executing his turnover in accordance with the administrative instructions for § 13b UStG valid at the time, that it was not he but the recipient of the service who was liable for the tax (see BFH from October 8, 2019, VR 15/18, BFH / NV 2020, 40).

Performs a External audit For both a subsequent tax claim and a tax refund, the interest payments according to § 233a AO must therefore be based on the tax claims of the individual years, without entering into any interactions with the respective other tax periods. A waiver of additional payment interest for objective reasons of equity is not possible if income is subsequently allocated to a different assessment period (BFH judgment of November 16, 2005, X R 3/04, BStBl II 2006, 155).

On the equitable waiver of additional payment interest according to § 233a AO, see also the BFH judgment of May 31, 2017 (I R 92/15, BStBl II 2019, 14).

The charging of additional interest according to § 233a AO is not only objectively unreasonable because the amendment of a tax assessment according to § 175 (1) sentence 1 No. 1 AO only takes place after 13 months after the basic assessment has been issued (see BFH of 3.12. 2019, VIII R 25/17, BStBl II 2020, 214; LEXinform 0951635).

3.10. Remedies

If the tax assessment or the crediting of tax withholding amounts and corporation tax is changed, any conclusions for the interest rate assessment according to 233a para. 5 AO must be drawn.

The objection is given against the fixing of interest. Objections to the underlying tax assessment or crediting of tax withholding amounts and corporation tax cannot, however, be asserted with the objection to the interest notice.

If the interest notice is contested as such, the suspension of execution may be considered under the conditions of § 361 AO or § 69 FGO. If an initial or a higher rate of reimbursement interest is sought with the legal remedy, a suspension of the enforcement is not possible in the absence of an enforceable administrative act. If the execution of the underlying tax assessment is suspended, the execution of the interest assessment is also to be suspended.

4. Forbearance Interest

4.1. Interest calculation

According to Section 234 (1) AO, deferral interest is charged for the duration of the granted deferral. Your height does not change if the Stpfl. pays before or after the payment date specified in the deferral order (target interest rate). The deferral interest is generally to be charged together with the last installment. The interest run begins on the first day for which the deferral takes effect and ends at the end of the last day for which the deferral was issued.

The amount of interest to be paid for each type of tax must be rounded down to the nearest amount divisible by € 50.

Example 4:

The income tax in the amount of € 4,215 is deferred in three monthly installments of € 1,400, € 1,400 and € 1,415.

Solution 4:

The interest calculation is carried out as follows:

Guess

interest

1. Rate

1 400 €

0,5 % = 7 €

2nd installment

1 400 €

1,0 % = 14 €

3rd installment

1 415 €

1,5 % = 21 €

The calculation of interest is based on € 1,415 ./. 15 €.

The charging of deferred interest can be waived in individual cases for reasons of equity in accordance with Section 234 (2) AO. Such a waiver can be considered, for example:

  • in the event of a disaster,

  • in the event of long-term unemployment of the tax debtor,

  • in the case of deferral for a taxpayer who has so far fulfilled his tax obligations, in particular his payment obligations, on time and who has not repeatedly made use of deferrals in the past. In these cases, deferment interest can only be waived if the deferral is not longer than three months and the total amount to be deferred does not exceed € 5,000.

4.2. Calculation of interest when correcting the tax assessment

If the deferred tax claim is reduced before the deferral period has expired, the interest notice according to Section 175 (1) sentence 1 no. 2 AO must be changed accordingly. A correction of the tax assessment after the deferral has expired has no effect on the deferred interest (Section 234 (1) sentence 2 AO). If advance payments are deferred, deferred interest is only to be reduced with regard to a change in the advance payment determination, but not with regard to the determination of the annual tax.

4.3. Calculation of interest in the event of early or late repayment

An early repayment does not automatically lead to a reduction in the deferred interest. However, if the deferred claim is repaid more than one month before the due date, deferral interest that has already been set for the period from receipt of the service can be waived upon application (Section 234 (2) AO). A late payment also triggers late payment penalties.

4.4. Interest calculation when the deferral is lifted

If the deferral order is canceled (withdrawal or revocation), the interest notices based on it must also be canceled or changed; §§ 175 Paragraph 1 Sentence 1 No. 1, 171 Paragraph 10 AO apply accordingly in accordance with § 239 Paragraph 1 Sentence 1 AO.

4.5. Equity measures

The charging of deferred interest can be waived in individual cases for reasons of equity in accordance with Section 234 (2) AO. Such a waiver can be considered, for example:

  • in the event of a disaster,

  • in the event of long-term unemployment of the tax debtor,

  • in the case of deferral for a taxpayer who has so far fulfilled his tax obligations, in particular his payment obligations, on time and who has not repeatedly made use of deferrals in the past. In these cases, deferment interest can only be waived if the deferral is not longer than three months and the total amount to be deferred does not exceed € 5,000.

If an interest rate is fixed with an equity measure (Section 163 AO), a separate objection is given against the discretionary decision on the equity measure (AEAO to Section 347 No. 4).

5. Interest on evaded taxes

5.1. Subject and conditions of interest

According to § 235 AO, evaded taxes (→ tax evasion), unjustifiably obtained tax advantages (e.g. wrongly obtained tax credits), wrongly obtained tax benefits (e.g. tax exemptions and tax reductions), unjustifiably obtained premiums and allowances, to which § 370 paragraphs 1 to 4, Section 371, Section 375 Paragraph 1 and Section 376 AO are to be applied accordingly (e.g. housing construction bonuses, employee savings allowances and allowances according to Section 83 EStG). Evasion interest is not to be set in the case of fraudulent investment allowances and home ownership allowances, because in this respect there is subsidy fraud and no tax evasion.

The obligation to pay interest only occurs if the objective and subjective facts of Section 370 (1) AO are fulfilled and the act within the meaning of Section 370 (4) AO has been completed. Attempts to evade taxes (Section 370 (2) AO in conjunction with Section 23 StGB) are just as insufficient to establish an interest obligation as a frivolous tax reduction (Section 378 AO) or other tax offenses (Sections 379 ff. AO). The setting of interest for evasion does not require a criminal conviction for tax evasion (BFH judgment of August 27, 1991, VIII R 84/89, BStBl II 1992, 9). The obligation to pay interest must be checked independently of criminal tax proceedings as part of the taxation procedure. The tax authorities are not bound by decisions in criminal proceedings (BFH judgment of 10.10.1972, VII R 117/69, BStBl II 1973, 68).

Evasion interest is also to be set if

  • effective self-disclosure according to § 371 AO has been reimbursed (e.g. by late reporting of evaded sales tax in the annual sales tax return),

  • procedural obstacles oppose criminal prosecution (e.g. death of the perpetrator or statute of limitations for prosecution),

  • the criminal proceedings have been discontinued due to insignificance (e.g. according to §§ 153, 153a StPO; § 398 AO) or

  • in other cases criminal prosecution is limited or criminal prosecution is waived (e.g. according to §§ 154, 154a StPO).

S. a. AEAO to § 235 (BMF of January 31, 2019, BStBl I 2019, 84).

5.2. Interest debtor

According to Section 235, Paragraph 1, Sentence 2 of the AO, the debtor is the interest debtor for whose benefit the taxes have been evaded. The regulation is only intended to skim off the tax benefit of the tax debtor.

Are tax debtors Joint and several debtors (§ 44 AO), every joint and several debtor is also debtor of interest. This also applies if, in the case of jointly assessed spouses, the offense of tax evasion is only fulfilled in the person of one of the spouses. Since in this case both spouses are debtors of the evasion interest, according to Section 239 (1) sentence 1 in conjunction with Section 155 (3) AO, a combined interest notice can be issued to the spouses (see BFH judgment of October 13, 1994, IV R 100/93, BStBl II 1995, 484).

Those referred to in §§ 34, 35 AO Representatives, asset managers and authorized persons are not liable to pay and are not debtors of the evasion interest (see BFH judgments of July 18, 1991, V R 72/87, BStBl II 1991, 781, and of September 27, 1991, VI R 159/89, BStBl II 1992, 163). This group of people can, however, be liable for both evaded taxes and evasion interest.

5.3. Interest calculation

The interest period begins with the occurrence of the reduction or the achievement of the tax advantage (upon completion of the act) and ends with the payment or the offsetting of the evaded taxes. For periods in which late payment penalties arise, deferrals or suspension are granted, no evasion interest will be charged.

At Due taxes (e.g. sales tax prepayments, wage tax) the reduction occurs at the time of the statutory due date. This also applies if no (pre) registration has been submitted. If an incorrect tax return that requires approval is submitted, the shortening only occurs when the taxpayer becomes aware of the approval pursuant to Section 168 sentence 2 AO (e.g. payment or transfer of the credit or a declaration of offsetting).

At Assessment taxes If an incorrect or incomplete tax return is submitted, the reduction occurs on the day of the notification of the tax assessment notice based on this declaration (§§ 122, 124 AO); the start of the interest run is usually postponed to the end of the due date.

Does the Stpfl. If no tax return has been submitted and if, for this reason, the tax has not been assessed, the tax is reduced at the point in time at which the assessment work for the relevant year was essentially completed. This point in time is also the start of interest. However, the tax office has the tax due to failure to submit the tax return estimated tax bases (§ 162 AO), the shortening occurs with the announcement of this tax assessment or the due date of the resulting final payment. In the event of evasion by failure to report Gift tax the course of the evasion interest begins at the point in time at which the FA would have set the tax had the tax return been properly reported and submitted (BFH of August 28, 2019, II R 7/17, BStBl II 2020, 247; LEXinform 0951217).

5.4. Calculation of interest when correcting the tax assessment

If the tax assessment notice is canceled, changed or corrected according to § 129 AO after the end of the interest run, the interest accrued up to that point remains unaffected (§ 235 para. 3 sentence 3 AO).

5.5. Statute of limitations

The deadline for setting evasion interest is one year (Section 239 (1) sentence 1 AO). It begins at the end of the year in which the assessment of the evaded taxes has become incontestable, but not before the end of the year in which the criminal proceedings that have been initiated have been legally concluded (Section 239, Paragraph 1, Clause 2, No. 3 AO). The suspension of the expiry of follow-up notices in accordance with Section 171 (10) sentence 1 AO is superseded by the special provisions in Section 239 (1) sentences 1 to 3 AO (BFH judgment of January 16, 2019, XR 30/17, BStBl II 2019, 362) .

Criminal proceedings only have an impact on the assessment period applicable to the evasion interest if it is initiated by the end of the year in which the evaded taxes were determined incontestably (BFH judgment of August 24, 2001, VI R 42/94, BStBl II 2001, 782).

6. Litigation interest on reimbursement amounts

6.1. Subject and condition of interest

Interest is only due on the amount of tax paid too much or the tax refund granted too little.

Prerequisite for the payment of reimbursement interest to the taxpayer. is, according to § 236 AO, that a fixed tax is reduced or a tax credit granted - or increased -. The tax reduction must have been made by a legally binding court decision. A claim to litigation interest in accordance with § 236 Paragraph 1 AO also exists if an ineffective tax assessment is revoked by a legally binding court decision (BFH of May 16, 2013, BStBl II 2013, 770).

6.2. Start and end of interest

The interest period begins on the day of lis pending and ends on the day of disbursement.

The dispute is only pending on the day on which the action is brought before the court (Section 66 (1) in conjunction with Section 64 (1) FGO).

6.3. Start of the assessment period for child benefit proceedings

If the family benefits office pays out the coveted child benefit provisionally during the legal proceedings due to an out-of-court urgent procedure, the period for setting litigation interest does not begin at the end of the year of the disbursement within the meaning of Section 239 (1) sentence 2 no. 4 AO, but only at the end of the year , in which the claim to legal interest arises. If the family benefits office issues the requested child benefit decision in the further course of the procedure, the entitlement to process interest acc. To § 236 (2) No. 1 AO arises at the point in time at which the legal dispute is settled based on the concurring statements of the parties involved (BFH judgment of 25.1. 2007, III R 85/06, BStBl II 2007, 598).

6.4. Interest claim even without interest loss

The 4th Senate of the Düsseldorf Tax Court, which is responsible for customs and import sales tax issues (4 K 885/10, EFG 2011, 104; the appeal proceedings were discontinued after the appeal was withdrawn, BFH decision of 1.3.2011, II R 55/10) has decided that the interest claim according to § 236 Abs. 1 AO - as well as § 291 BGB - does not presuppose that the creditor has actually suffered interest damage. Esp. According to § 236 AO, it does not matter whether the creditor of the claim for reimbursement of (import) sales tax actually has to reckon with a setting of additional interest according to § 233a AO due to the subsequent change in the sales tax assessment. In the case of dispute, the defendant main customs office had subsequently levied more than € 2 million in import sales tax from the plaintiff. The plaintiff paid the amount, but after unsuccessful opposition proceedings brought an action. The Senate upheld the complaint and overturned the decision of the defendant main customs office. The judgment became final. The plaintiff thereupon requested the setting of more than € 150,000 litigation interest. The defendant main customs office rejected this application and stated that Section 236 AO presupposed that the creditor of the reimbursement claim had actually suffered interest damage. However, the plaintiff claimed the paid import sales tax as input tax in her advance sales tax return submitted to the tax office. Damage to interest could therefore only have occurred for the period from the debiting of the tax amount to the crediting of the reimbursement amount paid by the tax office. The Finanzgericht Düsseldorf did not follow this line of argument. Neither the wording nor the purpose of Section 236 (1) AO presuppose that the creditor actually suffered interest damage.

7. Interest on suspension of execution

7.1. Requirements, start and end of interest

Prerequisite for the levying of suspension interest at Stpfl. is that the execution of a tax assessment, a notice on the reclaim of a tax refund or - after suspension of an income tax, corporation tax or assessment notice - a trade tax assessment notice or trade tax assessment has been suspended. Insofar as an objection or an action for rescission against a tax assessment is ultimately unsuccessful, interest must be paid on the amount owed in accordance with Section 237, Paragraph 1, Clause 1 AO, in respect of which the execution of the contested tax assessment was suspended. According to Section 237 (2) AO, interest is charged from the day on which the objection is received or the action is pending or the later start of → suspension of enforcement until the day on which the suspension of enforcement ends.

7.2. Purpose of interest

According to the ruling of the BFH (BFH of April 25, 2013, V R 29/11, BStBl II 2013, 767), the purpose of the interest according to § 237 AO is to skim off the benefit that the taxpayer. by the fact that he can dispose of a sum of money for the duration of the suspension, which is due to the tax creditor after the unsuccessfully contested tax assessment. The regulation aims at a balance between the interest advantages of the taxpayer. and the loss of interest by the taxpayer, so that the interest serves to give the taxpayer the benefit that is due to him for the amount owed under the substantive tax law. To achieve this purpose, § 237 AO generally ties in with the final outcome of proceedings against the tax assessment, in the interest of relieving the burden of proceedings. At the i.F.d. Application of the balancing required according to § 237 Abs. 4 AO in conjunction with § 234 Abs. 2 AO must therefore be taken into account that the legislature sees the outcome of the legal remedy proceedings as the best means to achieve a balance between the interests of the taxpayer and those of the taxpayer. bring about. It is therefore generally appropriate to view the decision on the setting of suspension interest as an automatic consequence of the outcome of the proceedings on the tax assessment, so that deviations from this only need to be made in particularly justified individual cases (BFH judgment of March 31, 2010, II R 2/09, BFH / NV 2010, 1602).

Had an appeal in fully Success, no suspension interest can be set even if the tax office has unlawfully suspended too high an amount from the execution (BFH of August 31, 2011, BStBl II 2012, 219). The wording of § 237 AO is clear in this regard. According to the meaning and purpose of the norm, a broader interpretation of the facts of Section 237 (1) AO cannot be considered.

The question of whether a legal remedy was successful depends on the subject matter of the proceedings and the specific request for legal remedy and is independent of the procedural nature of the process. The extent of the suspension of the execution and the aspect of the interest are irrelevant in the case of the legally erroneous suspension of an excessively high amount. The remedy has "finally no success" especially if the remedy

  • rejected by final decision,

  • has been withdrawn or restricted by the appellant if

  • the tax office does not remedy the request to reduce the tax amount.

This can lead to the result that the taxpayer who has essentially succeeded in his legal remedy and is only partially unsuccessful has to pay suspension interest for the entire excess suspended amount. On the other hand, the taxpayer who was completely successful and for whom an excessively high amount was illegally suspended from execution in the legal remedy procedure, is spared the interest obligation. The "full success" of the legal remedy procedure thus acts as an exemption from the interest obligation under Section 237 AO.

According to § 233 AO, claims from the tax liability relationship only earn interest insofar as this is required by law. The interest rates of §§ 233a to 237 AO form a final catalog. If additional payments are not based on a change in the tax assessment, but on the extent of the legally erroneous suspension of enforcement, no interest rate regulation is relevant. Therefore, in the case of the fully successful appeal, no interest will be accrued.

The excessively long duration of objection or legal action does not prevent the setting of suspension interest for this procedure, also from the point of view of forfeiture (BFH of April 27, 2016, X R 1/15, BStBl II 2016, 840).

7.3. Calculation of interest when correcting the tax assessment

Section 237 (5) of the AO stipulates that an interest notice is not to be revoked or changed if the tax assessment notice is repealed, amended or corrected in accordance with Section 129 of the AO after the appeal proceedings have been concluded. Even if the regulation generally addresses the situation of a repeal, change or correction of the tax assessment after completion of the legal remedy procedure, it only orders as a legal consequence that this does not trigger a cancellation or change of the interest assessment. In the event of the cancellation or amendment of the tax assessment upon completion of the appeal process, but before the interest notice is issued however, § 237 (5) AO does not provide for any legal consequences. Therefore, the still applies here Accessory principle the suspension interest with the result that the interest notice is based on a lower assessment basis (FG Münster dated August 4, 2009, 9-K-1268/07-K, EFG 2010, 193; the procedure is settled by a resolution dated May 10, 2010, IR 105/09).

8. Interest on sales tax surpluses according to the VAT system guideline

In its judgment of October 24, 2013 (C-431/12, UR 2014, 441; VAT 2013, 730), the ECJ ruled that the principle of the neutrality of the VAT system requires that the financial losses incurred by the taxpayer if the Excess VAT is not reimbursed within a reasonable time, due to the lack of availability of the amounts of money in question, to be offset by the payment of default interest. The calculation of the interest owed by the treasury is to be taken as the basis for the start of interest on the day on which the VAT surplus should have been offset in accordance with Council Directive 2006/112 / EC on the common VAT system. If the amount of input tax deducted exceeds the amount of VAT owed for a tax period, according to Art. 183 of the VAT Directive, the member states can either have the excess carried forward to the following period or reimburse it according to the details they have specified.

9. Related Lexicon Articles

→ decree

→ Investment deductions according to § 7g EStG

→ Debt interest

→ Provisional tax assessment

 

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