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The Federal Fiscal Court’s doubts about the constitutionality of late payment penalties

The Federal Fiscal Court (Bundesfinanzhof, BFH) had already expressed its doubts about the constitutionality of interest rates on tax arrears and, following on from this, has now used the same argument with respect to the level of late payment penalties.

The case that gave rise to the BFH decision was concerned with the suspension of late payment penalties on VAT for August 2018. The BFH has made reference to the rulings it had issued, shortly before, on doubts about the constitutionality of the level of standardised interest rates under Section 233a of the Fiscal Code [Abgabenordnung, AO] and Section 238(1) sentence 1 AO, as from 2012. For the dispute that is still pending, in their resolution of 26.5.2021 (case reference: VII B 13/21) the Munich-based judges stated that, in the light of their ruling, there were also doubts about the constitutionality of the statutory level of late payment penalties pursuant to Section 240(1) sentence 1 AO. In any case, this applies to the extent that the function of late payment penalties is not to be a means for exerting pressure but, instead, to be the consideration or compensation for postponing the payment of tax liabilities that are due and, therefore, they have an interest-like function. Against this backdrop, the enforcement of a disputed notice of settlement in respect of late payment penalties on VAT for August 2018 at half the level requested (interest component at 6%) had to be rescinded. The appeal proceedings are pending (case reference: VII R 55/20).

Please note: In comparable cases, you should first request a notice of settlement in respect of the late payment penalties. The subsequent appeals procedure would then be based on a reference to the above-mentioned proceedings pending at the BFH by operation of law.

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