If the tax aut\u00adho\u00adri\u00adties are unable to deter\u00admi\u00adne pre\u00adcis\u00ade\u00adly whe\u00adther a per\u00adson is the prin\u00adci\u00adpal tax\u00adpay\u00ader or mere\u00adly a lia\u00adble par\u00adty for a tax, they may on occa\u00adsi\u00adon resort to a spe\u00adcial instru\u00adment: the so-cal\u00adled \u2018noti\u00adce of assess\u00adment by elec\u00adtion\u2019. The Fede\u00adral Fis\u00adcal Court (BFH) has now left open \u2013 at least for the time being \u2013 whe\u00adther this is per\u00admis\u00adsi\u00adble under tob\u00adac\u00adco tax law and has gran\u00adted the per\u00adson con\u00adcer\u00adned inte\u00adrim legal protection.<\/p>\n
A noti\u00adce of assess\u00adment com\u00adbi\u00adnes two essen\u00adti\u00adal\u00adly dif\u00adfe\u00adrent types of lia\u00adbi\u00adli\u00adty into a sin\u00adgle noti\u00adce. In it, the tax aut\u00adho\u00adri\u00adty claims tax eit\u00adher from the prin\u00adci\u00adpal tax\u00adpay\u00ader under Sec\u00adtion 155 of the Tax Code or from a per\u00adson lia\u00adble under Sec\u00adtion 191 of the Tax Code. This may sound prac\u00adti\u00adcal, but it rai\u00adses signi\u00adfi\u00adcant legal ques\u00adti\u00adons. Accor\u00adding to the case law of the Fede\u00adral Fis\u00adcal Court (BFH), tax lia\u00adbi\u00adli\u00adty and lia\u00adbi\u00adli\u00adty as a gua\u00adran\u00adtor are, in prin\u00adci\u00adple, mutual\u00adly exclu\u00adsi\u00adve. A per\u00adson who is direct\u00adly lia\u00adble for a tax can\u00adnot at the same time be held lia\u00adble via a lia\u00adbi\u00adli\u00adty notice.<\/p>\n
The Main Cus\u00adtoms Office issued a noti\u00adce of optio\u00adnal assess\u00adment in respect of tob\u00adac\u00adco duty to the per\u00adson con\u00adcer\u00adned. The man had been in pos\u00adses\u00adsi\u00adon of and had traded in unta\u00adxed ciga\u00adret\u00adtes. Howe\u00adver, it was unclear whe\u00adther the ciga\u00adret\u00adtes had been impor\u00adted from a third coun\u00adtry or brought into Ger\u00adman tax ter\u00adri\u00adto\u00adry from ano\u00adther EU Mem\u00adber Sta\u00adte. This distinc\u00adtion is cru\u00adcial in deter\u00admi\u00adning whe\u00adther the indi\u00advi\u00addu\u00adal con\u00adcer\u00adned is lia\u00adble for the tax or is dee\u00admed lia\u00adble for tax eva\u00adsi\u00adon or the hand\u00adling of contraband.<\/p>\n
As the Main Cus\u00adtoms Office was unable to ascer\u00adtain the exact rou\u00adte of trans\u00adport, it opted to issue a dis\u00adcre\u00adtio\u00adna\u00adry assess\u00adment noti\u00adce. The per\u00adson con\u00adcer\u00adned lodged an appeal and appli\u00aded for a stay of enforce\u00adment so as not to have to pay the amount spe\u00adci\u00adfied in the noti\u00adce for the time being. The Hes\u00adsi\u00adan Finan\u00adce Court rejec\u00adted the appli\u00adca\u00adti\u00adon for a stay of enforce\u00adment and con\u00adside\u00adred the dis\u00adcre\u00adtio\u00adna\u00adry assess\u00adment noti\u00adce to be per\u00admis\u00adsi\u00adble in principle.<\/p>\n
The Fede\u00adral Fis\u00adcal Court did not con\u00adcur with this assess\u00adment in the appeal pro\u00adcee\u00addings. The Sena\u00adte noted that, in its more recent case law, it had not ruled on the admis\u00adsi\u00adbi\u00adli\u00adty of such an instru\u00adment. The only rele\u00advant decis\u00adi\u00adon dates from 1983 and, at that time, found no sub\u00adstan\u00adti\u00adal doubts regar\u00adding tax assess\u00adment noti\u00adces in com\u00adpa\u00adra\u00adble cir\u00adcum\u00ads\u00adtances. As this issue has not sin\u00adce been reas\u00adses\u00adsed by the hig\u00adhest court, the Fede\u00adral Fis\u00adcal Court (BFH) con\u00adsiders that, upon sum\u00adma\u00adry exami\u00adna\u00adti\u00adon, the\u00adre are serious doubts as to the lega\u00adli\u00adty of the con\u00adtes\u00adted notice.<\/p>\n
The Fede\u00adral Fis\u00adcal Court (BFH) express\u00adly reser\u00adved the right to make a final decis\u00adi\u00adon on whe\u00adther tax assess\u00adment noti\u00adces are per\u00admis\u00adsi\u00adble under tob\u00adac\u00adco tax law until the main pro\u00adcee\u00addings. In the mean\u00adti\u00adme, it orde\u00adred a stay of enforce\u00adment wit\u00adhout the requi\u00adre\u00adment to pro\u00advi\u00adde secu\u00adri\u00adty. The per\u00adson con\u00adcer\u00adned is the\u00adr\u00ade\u00adfo\u00adre not requi\u00adred to pay the amount for the time being.<\/p>\n
This decis\u00adi\u00adon is rele\u00advant to anyo\u00adne faced with excise duty pro\u00adcee\u00addings or simi\u00adlar situa\u00adtions in which the aut\u00adho\u00adri\u00adties seek to resol\u00adve an unclear situa\u00adti\u00adon by means of a com\u00adbi\u00adned noti\u00adce. Tho\u00adse affec\u00adted should be awa\u00adre that such a pro\u00advi\u00adsio\u00adnal assess\u00adment noti\u00adce may be open to chall\u00adenge. In any case, it is advi\u00adsa\u00adble to seek legal assis\u00adtance at an ear\u00adly stage, as the time limits for lodging objec\u00adtions and brin\u00adging legal pro\u00adcee\u00addings are short, and an appli\u00adca\u00adti\u00adon for admi\u00adnis\u00adtra\u00adti\u00adve review must be sub\u00admit\u00adted separately.<\/p>\n