In its judgement of 28 November 2023, the Federal Fiscal Court (BFH) continued its case law on the application of the principles of proportionality and the protection of legitimate expectations in the case of estimates and the sometimes occurring administrative practice of so-called "moon estimates" in tax audit and tax evasion cases.
Accordingly, an estimate of revenue cannot - in terms of reason and amount - be satisfied with the mere identification of formal or material deficiencies, but must also be based on the extent of its significance for the company. specific individual case be weighted. A full estimate with complete rejection of the taxpayer's profit calculation is only permissible if the deficiencies identified are serious.
The facts of the case
In the underlying case, a restaurant operator, who generated a large part of his revenue in the form of cash, used a very simple electronic cash register between 2011 and 2014, which had been developed in the 1980s. The tax office (FA) did not consider the plaintiff's records to be in order and made a full estimate of the revenue. This led to a quadrupling of the declared turnover. The tax court commissioned an expert to examine the cash register. The expert came to the conclusion that a certain internal counter of the cash register, which was intended to ensure that the daily printouts were complete (Z1 counter), could be changed by entering corresponding codes. However, such a change could become necessary in the course of repairs to the cash register. As a result, the tax court considered the cash register to be objectively manipulable - and therefore unsuitable for tax purposes - and essentially confirmed the full assessment of the tax office. The tax court was unable to establish any actual manipulation of the cash register.
Decision of the BFH
The BFH overturned this decision and referred the case back to the tax court for reconsideration. It is true that the cash register used by the claimant was objectively manipulable. In principle, this constituted a formal defect of great importance, which gave the tax office the power to make an estimate. However, knowledge of the manipulability of such old cash register models had only grown over time. Therefore, in application of the principle of proportionality, the taxpayers were to be granted protection of legitimate expectations under certain conditions, which were explained in more detail in the judgement. The weight of the deficiency resulting from the objective manipulability was then not as high as in the normal case and could even be cancelled completely if additional evidence is kept.
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