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Interest on arrears unconstitutional?

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Interest must be paid on tax arrears for income tax, corporate income tax, trade tax and value added tax; interest regularly starts to accrue 15 months after the end of the assessment period (Section 233a of the German Fiscal Code).

The reason for the additional tax payment does not matter. Affected are – due to the 15-month waiting period – in particular subsequent payments after external audits. The interest rate is 0.5% per month, i.e. 6% per year (Section 238 (1) AO). Since the statutory interest rate now deviates significantly from the market rate, the Federal Fiscal Court has expressed serious doubts about the legality of this interest. If these doubts initially concerned only years from 2015, the court has since extended them to years from 2012.

The Internal Revenue Service has responded to the concerns.

Thereafter, interest will continue to be assessed at the rate of 0.5% per month; however, if an appeal is filed against the assessment, enforcement of the interest will initially be suspended upon request. This applies to interest periods from April 2012.


Affected are

both interest on arrears pursuant to Section 233a of the German Fiscal Code (AO) and interest on deferral, evasion, litigation and suspension. For interest periods prior to April 2012, a suspension can only be considered in special cases.

It now remains to be seen how the Federal Constitutional Court will rule. Should it deem the interest rate to be unlawful, this could result in the invalidity of all interest rate determinations. In order to benefit from such a decision, it is necessary that the interest assessments are contested by means of an appeal so that the assessments do not become final.

(For further comments, information and examples, please refer to our information letter 02/2019).

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Neumann & Walczak – tax consulting company GmbH – Robert-Bosch-Strasse 1 – 59439 Holzwickede

Neumann & Walczak Tax Consultants – Partnership –
Robert-Bosch-Strasse 1 – 59439 Holzwickede

Website: www.neumann-walczak.de – E-mail: info@neumann-walczak.de

Phone: (0049) 02301 – 91 291 0 – Fax: (0049) 02301 – 91 291 21