Die verfassungsrechtliche Alleinentscheidungsbefugnis der Finanzbehörden bei indirekten Verbrauchsteuern Grundlagen, Folgen und Rechtsschutz gegen Verletzungen durch Nichtfinanzgerichte

The question of whether an operation is taxable is a question of tax assessment and as such – for constitutional reasons – exclusively for the finance authorities to decide, who need to make any such decision in a fiscal administrative procedure and by means of a fiscal administrative act pursuant to § 155 para. 1 AO (Tax Code). This entails that all courts who do not have the jurisdiction to annul a fiscal administrative act that has been issued are bound to the facts of such administrative act following its issuance. At the same time, this also entails that, prior to the issuance of any such fiscal administrative act, the respective courts have to hold back in relation to the binding and final application of tax laws and either suspend the proceedings or keep them otherwise rectifiable until such time as the competent institutions have resolved the matter at issue. As a result, the tax collector is entitled, based on the taxpayer's reasoning, along the lines of § 164 para. 2 clause 2 in connection with § 155 para. 1 clause 3 AO, to file with the competent tax office an application for the assessment of the tax liability which includes a description of the individual operation in question. The decision concerning this application contains the fiscal administration's assessment of the tax considerations relating to the operation under dispute between the parties governed by private law. Once the respective assessment has been issued by the fiscal administration, the non-tax court can decide accordingly, in which case the effective legal protection of the party concerned as guaranteed by the constitution under art. 19 para. 4 GG (Basic Law) is duly observed. For, both of the parties concerned can rightly seek review by a tax court of the assessment issued by the fis cal administration and, following the date on which the point of tax law at issue is resolved by a final and binding decision, claim compensation in breach of the binding force of the decision pursuant to § 580 no. 6 ZPO (Code of Civil Procedure) for the financial jeopardy to assets, if any, incurred based on the non-tax court decision. However, in cases where the non-tax court infringes the – constitutionally required – exclusive decision-making power of the fiscal administration, the party concerned has no other possibility but to force the non-tax court to suspend the proceedings in accordance with the requirements set forth above, by means of a complaint of unconstitutionality lodged to assert violation of effective legal protection under art. 19 para. 4 GG.