BFG: Revocation of legal aid in case of refusal to cooperate

May 12, 2021 Benn-Ibler Rechtsanwälte

In the present proceedings, the Austrian Federal Fiscal Court (Bundesfinanzgericht) addressed the question of legal aid (Verfahrenshilfe) within the meaning of Sec. 292 Federal Fiscal Code (Bundesabgabenordnung).

On 4 November 2019, the account balance of minimum income recipient was seized and the Tax Authority (Finanzamt) issued a notice which also set fees and cash expenses in the amount of 155,81 EUR for this official act. An appeal was filed against the decision and a request for legal aid was made within the course of the appeal proceedings. This request was granted by the BFG in a decision of 23 March 2020, with the indication that the legal action sought was neither obviously wanton nor futile.

On 5 May 2020, the appointed legal aide informed the Court that the applicant, after several attempts to communicate with him, did not provide her with the required documents to declare his financial circumstances and that he generally refused to cooperate, wherefore she requested the revocation of the legal aid.

The BFG stated in this regard that under Sec. 292 (13) BAO, the revocation of legal aid is mandatory if the conditions for granting legal aid are no longer met. This includes, for example, that the legal action pursuant to Sec. 292(1) BAO does not appear to be obviously wanton or futile.

Futility of an appeal would be given if it is recognizable to any person objectively judging and capable of judgment who has been made acquainted with the facts of the case that the respective appeal will not be successful; this already results from the submission of the appeal.

According to the BFG, there is a case of wantonness if the applicant appeals against a public authority despite knowledge of the groundlessness and futility of one's own appeal. In addition, wantonness must be evident, in other words, the futility must be recognizable to everyone.

Since the petitioner refused to cooperate with the legal aide, despite having been instructed to do so, it was also not possible for her to file a promising appeal. This would amount to wanton obstruction of the authorities, for which reason the legal aid was to be revoked.

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