BFG examines alleged violation of procedural regulations

Mar 17, 2021 Benn-Ibler Rechtsanwälte

The basis for the violations of procedural regulations alleged by the plaintiff was formed by several decisions issued by the tax authority. The plaintiff alleged in these proceedings:

• The procedural reopening decisions were not substantiated or were inadequately substantiated and the external audit report was incorrect: The BFG stated: "With this assertion, the reasons for the decisions were contested, but not the decisions. In accordance with the case law of the Austrian Supreme Court, only the decisions or parts of decisions can be challenged, as only these are legally binding.
• The right of the parties to be heard had been violated: According to the BFG, Sec. 115(2) of the Federal Fiscal Code (Bundesabgabenordnung, BAO) stipulates that parties must be given the opportunity to assert their rights and obligations (hearing of the parties). After participating in a final meeting, the plaintiff was informed of all the findings made. He had the opportunity to comment on these findings. The fact that he did not do so does not constitute a violation of the right to be heard, nor does the refusal to sign the minutes of this meeting.
• The legal representative should have been summoned: According to Sec. 149(1) (second sentence) BAO, the representatives designated by the tax authority must also be summoned to the final meeting. A lawyer falls under this provision if he claims to be authorized, for example if he notes "power of attorney granted" on a submission. He must also state its scope. In this case, this was not done - the representative did not have to be summoned, nor was the parties' right to be heard violated as a result.
• Delivery error on the part of the tax authority: The BFG stated that the service of documents was legally effective to the plaintiff pursuant to Sec. 103(2)(a) BAO, since the lawyer neither invoked the power of attorney nor submitted one.
• Interest on claims had been wrongly determined. The BFG stated: "The determination was justified in accordance with Sec. 205(1) BAO.

An appeal to the Supreme Administrative Court (Verwaltungsgerichtshof) is not admissible.

BFG GZ RV/7103371/2020 (31.8.2020)