Legal situation in the case of the so-called basic decision

In the case of negative tax assessment notices, there is usually no negative tax assessment notice to begin with. For this reason, in my opinion, material damage only occurs if a negative tax assessment is issued at some point on the basis of the basic assessment. The BGH case law is differentiated here and has gaps:

According to the case law of the Federal Court of Justice, the limitation period for claims for damages by the client against his tax advisor begins, as described, with the notification of the tax assessment notice. This principle initially applies to tax assessment notices that request the payment of a tax or order the absence or discontinuation of a tax benefit.

However, according to the BGH, the limitation period also begins with the notification of the tax assessment notice if this does not yet contain a tax assessment, but merely independently determines a basis for taxation, which is binding for the subsequent tax assessment in accordance with Section 182 AO (BGH NJW-RR 2008, 1508, 1509; BGH NJW 1993, 2799; in this respect also OLG Frankfurt am Main, Urt. v. 21.02.2006, Ref.: 8 U 90/04, BeckRS 2011, 25589).

Special case: Determination of the existence of a so-called tax contribution account

The question raised in the case of determining the existence of a so-called tax contribution account is unclear and has not yet been answered by the BGH.

In my opinion, the aforementioned principles do not apply here, as the decisions tend to deal with tax assessment notices and profit assessment notices (see, for example, OLG Frankfurt am Main, Urt. v. 21.02.2006, Ref.: 8 U 90/04, BeckRS 2011, 25589). Based on such a tax assessment amount, the tax is set and levied at a rate to be determined by the municipalities entitled to levy the tax. The tax assessment notice therefore has a binding effect on the trade tax assessment notice. Objections to the assessment can therefore only be asserted against the assessment notice and not against the trade tax assessment notice (BGH NJW-RR 2008, 1508, 1509). The damage occurs because the tax authority concludes its main decision-making process to the detriment of the taxpayer by issuing the tax assessment notice and substantiates the tax claim under public law by creating the basis for the realization of the claim in accordance with Section 218 AO (BGH NJW-RR 2008, 1508, 1509; BGH NJW 1995, 2108). The decisive factor is when the taxpayer’s determination and assessment risk first materialized into a loss as a result of an administrative act by the tax authority. However, separate determinations pursuant to § 182 AO are binding. The determination of a tax deposit account constitutes a separate determination within the meaning of Section 179 (1) AO (Frotscher in Schwarz AO, before Section 179, para. 17; Brandis in Tipke/Kunze AO/FGO, Section 179, para. 2). Therefore, the binding effect of § 182 para. 1 AO also applies in principle to this type of assessment notices.

It therefore does not seem completely absurd that the BGH would consider the determination of the existence of the tax deposit account as the occurrence of damage.