The FG Rhineland-Palatinate decided with judgement of 12.04.2018 (6 K 2254/17) that evasion interest cannot be subject of an actual communication.
It was indisputable between the plaintiff and the tax office that he had evaded taxes. The exact height of the evaded taxes could not be determined despite effort around clearing-up any longer surely, so that one met an actual communication over the taxation bases.
The tax office then issued notices of change and set evasion interest. The plaintiff first lodged an objection against the determination of interest on evasion and then filed an action. He was of the opinion that a payment amount had been fixed within the framework of the actual agreement, which should include all ancillary benefits, i.e. also the interest on evasion.
The Finance Court ruled that the interest on evasion was rightly fixed.
According to § 204 AO the tax authority is to promise the taxpayer under certain conditions following an external audit under certain conditions bindingly, as a fact examined for the past and represented in the audit report will be treated in the future tax law. Such a promise can then unfold binding effect in connection with the taxation of a later realized fact (§ 206 AO). However, it requires, among other things, a written declaration marked as binding (§ 205 (1) AO) and an indication of the (future) periods for which the commitment is to apply BFH judgment of 30 April 2009 V R 3/08, BFH/NV 2009, 1734; FG Köln, judgment of 29 October 2014 5 K 463/12, EFG 2015, 1524, BFH, judgment of 20 October 2016 VI R 27/15, BFH/NV 2017, 223).
Commitments pursuant to § 204 AO, however, can only be made for the future treatment of a tax situation; how a situation realised in the past is to be assessed cannot be the subject of a commitment (Rüsken in Klein, AO, 13th edition 2016, § 204 Rn. 11 m.w.N.).
The actual understanding contained no agreement with regard to the fixing of interest on evasion. According to the clear wording of § 205 (1) AO, oral ancillary agreements are not binding in this respect.
The present written agreement unequivocally expressed the will of the tax office to bind the plaintiff, so that the plaintiff’s submission and his petitions for evidence that an oral ancillary agreement had been concluded no longer had to be followed up. The written content of the actual communication did not support the plaintiff’s submission.
In the grounds of the judgment, the Senate explained that the subject of an actual communication – whether in writing or orally – cannot be the waiver of the fixing of interest on evasion. In the case of tax evasion, the determination of interest on evasion is not left to the discretion of the tax authorities. The wording of § 235 (1) AO is unambiguous. This means that the question of whether interest on evasion is fixed is not at the disposal of the parties involved. An agreement to waive the fixing of evasion interest in the event of tax evasion would be invalid.