Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
Second Chapter
Administrative acts
Section 118
Definition of administrative act
An administrative act shall be any order, decision or other sovereign measure taken by an authority to regulate an individual case in the sphere of public law and intended to have a direct, external legal effect. A general order shall be an administrative act directed towards a group of people defined or definable on the basis of general characteristics or relating to the public law character of a matter or its use by the public at large.
Section 119
Clarity and form of an administrative act
(1) An administrative act shall be sufficiently definite and precise in content.
(2) An administrative act may be issued in written, electronic, oral or other form. An oral administrative act shall be confirmed in writing when there is a legitimate interest that this should be done and the person concerned requests this without undue delay.
(3) A written or electronic administrative act shall indicate the issuing authority. Furthermore, it shall contain the signature or name of the head of the authority, his deputy or the person appointed by him; this provision shall not apply to administrative acts issued using a standard form or with the aid of automated mechanisms. Where the law requires that an administrative act be in writing, the issuing authority shall be indicated on the qualified certificate underlying the electronic signature or on an associated qualified attribute certificate in the case of electronic administrative acts. Where section 87a(4), third sentence, applies, the confirmation pursuant to section 5(5) of the DE-Mail Act must indicate the issuing revenue authority as user of the DE-Mail account.
Section 120
Ancillary provisions to administrative acts
(1) An administrative act to which a claim exists may be accompanied by ancillary provisions only when this is permitted by law or when it is designed to ensure that the legal requirements for the administrative act are fulfilled.
(2) With due discretion, and notwithstanding the provisions of subsection (1) above, an administrative act may be issued with:
1. a provision to the effect that a privilege or burden shall begin or end on a certain date or shall apply for a certain period (time limit),
2. a provision to the effect that the commencement or ending of a privilege or burden shall depend upon a future occurrence which is uncertain (condition),
3. a reservation that the act is subject to revocation,
or be combined with
4. a provision requiring the beneficiary to perform, tolerate or omit to do a certain action (obligation),
5. a reservation to the effect that an obligation may be subsequently introduced, amended or supplemented.
(3) An ancillary provision may not counteract the purpose of the administrative act.
Section 121
Reasons for an administrative act
(1) A written or electronic administrative act, as well as an administrative act confirmed in writing or electronically, shall be accompanied by a statement of reasons where this is necessary for its comprehension.
(2) No statement of reasons shall be required:
1. where the revenue authority grants an application or acts upon a declaration and the administrative act does not infringe upon the rights of another,
2. where the person for whom the administrative act is intended or who is affected by it is already acquainted with the opinion of the revenue authority as to the material and legal positions or is able to comprehend such without difficulty,
3. where the revenue authority issues similar administrative acts in large number or with the help of automated mechanisms and individual cases do not merit a statement of reasons,
4. where this derives from a legal provision,
5. where a general order is publicly disclosed.
Section 122
Disclosure of an administrative act
(1) An administrative act shall be disclosed to the person for whom it is intended or who is affected thereby. Section 34(2) shall apply accordingly. The administrative act may also be disclosed to an authorised representative. The act should be disclosed to the authorised representative if the revenue authorities are in possession of a written authorisation or an authorisation transmitted electronically using an officially prescribed data set, as long as the authorised representative has not been barred pursuant to section 80(7).
(2) A written administrative act sent by post shall be deemed as disclosed
1. on the third day after posting if posted to an address within Germany,
2. one month after posting if posted to an address outside Germany,
except where it was not received or was received at a later date; in case of doubt the authority shall prove receipt of the administrative act and the date of receipt.
(2a) An administrative act sent electronically shall be deemed as disclosed on the third day after sending except where it was not received or was received at a later date; in case of doubt the authority shall prove receipt of the administrative act and the date of receipt.
(3) An administrative act may be publicly disclosed where this is permitted by law. A general order may be publicly disclosed even where it is inappropriate to disclose it to those concerned.
(4) The public disclosure of an administrative act shall be effected by publicising the act’s operative terms in accordance with standard local practice. Such disclosure shall state where the administrative act and its statement of reasons may be viewed. The administrative act shall be deemed disclosed two weeks after the date when the act is publicised in accordance with standard local practice. A general order may specify a different date for this purpose, but such date may be no earlier than the day after the act is publicised.
(5) An administrative act shall be served if so required by law or if so ordered by authorities. Subject to the third sentence above, the service of administrative acts shall be performed in accordance with the provisions of the Administrative Service of Documents Act. In derogation of section 7(1), second sentence, of the Administrative Service of Documents Act, the fourth sentence of subsection (1) above shall apply to the service of an administrative act to an authorised representative.
(6) The disclosure of an administrative act to a participant with simultaneous effect for and against other participants shall be permissible to the extent that the participants have agreed to this; these participants may subsequently request to receive a copy of the administrative act.
(7) Where administrative acts concern
1. spouses or civil partners or
2. spouses and their children, civil partners and their children, or single parents and their children,
it shall suffice for disclosure to all concerned where one copy is served to their joint address. Administrative acts shall be disclosed separately to the participants if they so request or if the revenue authority has knowledge of serious differences of opinion between them.
Section 122a
Disclosure of administrative acts via electronic retrieval
(1) Administrative acts may, with the consent of the participant or his authorised representative, be disclosed by making them available for electronic retrieval via remote data transmission.
(2) Consent may be revoked at any time with effect for the future. Revocation of consent shall not take effect with the revenue authorities until they receive such revocation.
(3) The person who is authorised to retrieve the administrative act shall authenticate himself in accordance with section 87a(8).
(4) An administrative act made available for electronic retrieval shall be deemed disclosed on the third day after notification of the act’s availability has been sent to the person authorised to retrieve the relevant data. In cases of doubt, the authorities must provide proof that the notification was received. If the revenue authorities cannot provide proof of the notification’s receipt by the person who is authorised to retrieve the administrative act and who disputes receipt, the act shall be deemed disclosed on the date when the person authorised to retrieve the act carried out the retrieval. The same shall apply if the person authorised to retrieve the act asserts irrefutably that he did not receive the notification within three days after it was sent.
Section 123
Appointment of an authorised recipient
A participant with no residence or habitual abode, registered office or business management in Germany, in another Member State of the European Union, or in a country where the Agreement on the European Economic Area applies shall, upon request and within a reasonable period of time, provide the revenue authority with the name of an authorised recipient in Germany. Should he fail to do so, any document sent to him shall be deemed as having been received one month after its posting, and a document transmitted electronically shall be regarded as having been received on the third day after its transmission. This shall not apply if it is established that the document or the electronic document did not reach the recipient at all or reached him at a later date. The participant shall be informed of the legal consequences of the omission.
Section 124
Validity of an administrative act
(1) An administrative act shall take effect vis-à-vis the person for whom it is intended or who is affected thereby at the moment it is disclosed to him. The administrative act shall apply in accordance with its content as disclosed.
(2) An administrative act shall remain in effect for as long as it is not withdrawn, revoked, otherwise cancelled or expires through the passage of time or for any other reason.
(3) An invalid administrative act shall have no effect.
Section 125
Invalidity of an administrative act
(1) An administrative act shall be invalid where it is very gravely erroneous and this is apparent when all relevant circumstances are duly considered.
(2) Regardless of the conditions laid down in subsection (1) above, an administrative act shall be invalid if:
1. it is issued in written or electronic form but fails to indicate the issuing revenue authority,
2. no person can comply with it for practical reasons,
3. it requires an illegal act to be committed, by virtue of which the conditions for a criminal offence or an administrative offence are fulfilled,
4. it is contrary to public policy.
(3) An administrative act shall not be invalid merely because:
1. provisions on local jurisdiction have not been observed,
2. a person excluded under section 82(1), first sentence, numbers 2 to 6 and section 82(1), second sentence, is involved,
3. a committee required by law to cooperate in the issue of the administrative act did not or was unable to take the prescribed decision,
4. the cooperation required by law of another authority did not occur.
(4) Where the invalidity applies only to part of the administrative act, it shall be deemed invalid in its entirety if the invalid part is so essential that the revenue authority would not have issued the administrative act without it.
(5) The revenue authority may at any time ascertain invalidity ex officio; it must be ascertained upon application when the applicant has a legitimate interest in such.
Section 126
Remedying errors in procedure and form
(1) An infringement of the regulations governing procedure or form which does not render the administrative act invalid under section 125 shall be disregarded in the event that
1. an application necessary to issue the administrative act is made subsequently,
2. a necessary statement of reasons is provided subsequently,
3. a necessary participant consultation is held subsequently,
4. a decision of a committee whose cooperation is required to issue the administrative act is taken subsequently,
5. the necessary participation of another authority is obtained subsequently.
(2) Actions referred to in subsection (1) numbers 2 to 5 above may be carried out subsequently up until the trial court proceedings of a fiscal court matter have been concluded.
(3) Where an administrative act lacks the necessary statement of reasons or has been issued without the necessary consultation of a participant so that the administrative act was unable to be contested in time, failure to observe the period for objection shall not be considered a fault. The decisive event for restitutio in integrum under section 110(2) shall be deemed to occur when the procedural action which was omitted is subsequently undertaken.
Section 127
Consequences of errors in procedure and form
A claim for the cancellation of an administrative act which is not invalid under section 125 may not be made solely on the grounds that the act came into being in breach of provisions governing procedure, form or local jurisdiction if no other decision could have been taken in the matter.
Section 128
Reinterpretation of an erroneous administrative act
(1) An erroneous administrative act may be reinterpreted into another administrative act where it has the same aim, could have been issued legitimately by the issuing revenue authority using the same procedures and forms, and where the requirements for its issue are fulfilled.
(2) Subsection (1) above shall not apply where the administrative act into which the erroneous administrative act is to be reinterpreted would contradict the clearly recognisable intention of the issuing revenue authority or where its legal consequences would be less favourable for the person affected than those of the erroneous administrative act. Furthermore, reinterpretation shall not be permissible where the withdrawal of the administrative act would not be allowable.
(3) A decision which can only be issued as being bound by law may not be reinterpreted into a discretionary decision.
(4) Section 91 shall apply accordingly.
Section 129
Obvious errors in issuing an administrative act
The revenue authority may at any time correct typographical mistakes, errors in calculation and similar obvious errors which have occurred in issuing an administrative act. Corrections shall be made where the participant has a legitimate interest in such. Where adjustment to an administrative act issued in writing is sought, the revenue authority shall be entitled to request submission of the document which is to be corrected.
Section 130
Withdrawal of an unlawful administrative act
(1) An unlawful administrative act may, even after it has become incontestable, be withdrawn wholly or in part with ex nunc or retroactive effect.
(2) An administrative act which gives rise to a right or a substantial advantage in legal terms or confirms such a right or advantage (beneficial administrative act) may only be withdrawn where
1. it has been issued by an authority without the requisite subject-matter jurisdiction,
2. it has been effected by improper means such as fraudulent misrepresentation, threat or bribery,
3. the beneficiary obtained the administrative act by providing information which was essentially incorrect or incomplete,
4. the beneficiary was aware of its illegality, or was unaware of this due to gross negligence.
(3) Where the revenue authority learns of facts which justify the withdrawal of an unlawful beneficial administrative act, the withdrawal shall be permissible only within one year of the date of gaining such knowledge. This shall not apply in the case of subsection (2) number 2 above.
(4) Once the administrative act has become incontestable, the decision concerning withdrawal shall be taken by the revenue authority responsible under the provisions regarding local jurisdiction; this shall also apply where the administrative act to be withdrawn has been issued by another revenue authority; section 26, second sentence, shall remain unaffected.
Section 131
Revocation of a lawful administrative act
(1) A lawful, non-beneficial administrative act may, even after it has become incontestable, be revoked wholly or in part with ex nunc effect, except where an administrative act of like content would have to be issued or where revocation is impermissible for other reasons.
(2) A lawful, beneficial administrative act may, even when it has become incontestable, be revoked in whole or in part with ex nunc effect only when
1. revocation is permitted by law or a right of revocation is reserved in the administrative act itself,
2. the administrative act is combined with an obligation with which the beneficiary has not complied with at all or in time,
3. the revenue authority would be entitled, as a result of subsequent changes in circumstances, not to issue the administrative act and if failure to revoke it would endanger the public interest.
Section 130(3) shall apply accordingly.
(3) The revoked administrative act shall become null and void with the entry into force of the revocation, provided that the revenue authority has not determined a later date.
(4) Once the administrative act has become incontestable, decisions as to revocation shall be taken by the revenue authority responsible under the provisions regarding local jurisdiction; this shall also apply where the administrative act to be revoked has been issued by another revenue authority.
Section 132
Withdrawal, revocation, cancellation and amendment in legal remedy proceedings
The provisions on withdrawal, revocation, cancellation and amendment of administrative acts shall also apply during objection proceedings and proceedings before the fiscal courts. Section 130(2) and (3) and section 131(2) and (3) shall not prevent withdrawal and revocation during the objection proceeding, or during the proceedings before a fiscal court, of a beneficial administrative act that has been contested by a third party to the extent that this remedies the objection or appeal.
Section 133
Return of documents and other items
Where an administrative act has been incontestably revoked or withdrawn, or where it is not or no longer in effect for other reasons, the revenue authority may require such documents or items as have been distributed as a result of the administrative act, and which serve to prove the rights deriving from the administrative act or its exercise, to be returned. The holder and, where this person is not the owner, also the owner of these documents or items shall be obliged to return them. However, the holder or owner may require that the documents or items be handed back to him once the revenue authority has marked them as invalid; this shall not apply to items for which such a marking is impossible or cannot be made with the necessary degree of visibility or permanence.
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