BFH decision: Requirements for an electronic logbook
At the beginning of this year, the Federal Fiscal Court (BFH) addressed the requirements for an electronic driver's log. In its decision of 12 January 2024 (VI B 37/23, NV 2024, 389), the BFH confirmed the previous case law and thus the strict requirements for electronic logbooks. The fundamental technical exclusion of subsequent changes remains central.
Facts of the case
The BFH's decision was preceded by proceedings before the Hesse Fiscal Court (16 May 2023 - 3 K 1219/21). In its appeal for non-admission of the appeal, the plaintiff claimed that the appeal should be admitted as the lower court had deviated from the case law of the BFH in several respects. In addition, the plaintiff asserted a procedural defect in accordance with Section 115 para. 2 no. 3 Fiscal Court Order (FGO) due to a breach of the law of reasoning (procedural defect).
Decision of the BFH
The BFH dismissed the appeal against denial of leave to appeal as unfounded and did not recognize any divergence in the dispute within the meaning of Section 115 para. 2 no. 2 alt. 2 FGO. In the opinion of the BFH, the assumption of the Hesse Fiscal Court that subsequent changes are not recognizable if they can only be disclosed through further queries, which only the plaintiff's system administrator has the opportunity to make, does not constitute a deviation from the previous Senate case law. To date, no ruling has determined how the documentation and disclosure of entries in electronic logbooks must be carried out in detail from a technical perspective. The BFH also rejected the admission of the appeal due to a procedural defect (Section 115 para. 2 no. 3 FGO), as there was no procedural error according to this standard.
From Stefan Sperandio, Katsiaryna Khramykh, Simeon Wahl and Lukas Hepp
Interest on Suspension of Execution of a Liability Notice
With the Growth Opportunities Act that came into force on 28 March 2024, interest on the suspension of execution of a liability notice was regulated for the first time (§ 237 para. 6 AO). This provision applies to liability claims arising after 31 December 2024.
Background
According to § 42d para. 1 No. 1 EStG, employers are liable for the wage tax they are required to withhold, report, and pay. Liability notices (§ 191 AO) are issued during a payroll tax audit if the employer has (negligently) failed to report and pay the correct wage tax for their employees. An objection can be filed against this according to § 347 ff. AO.
However, an objection does not have a suspensive effect on the payment request. The payment is not deferred despite the objection. To obtain a deferment of the payment deadline until the decision on the objection, the suspension of execution (AdV) of the liability notice (see § 361 AO) must also be applied for. This can be done together with the objection. AdV is granted if there are serious doubts about the legality of the contested administrative act or if the execution would cause undue hardship not justified by overriding public interests for the affected person.
From Stefan Sperandio, Johanna Wolter, Simeon Wahl and Serena Spataro
Hamburg Fiscal Court comments on the possibility of lump-sum tax payments for employer contributions to company pension schemes in accordance with Section 37b GITA
In its judgement of 14 March 2024 - 6 K 109/20, the Hamburg Fiscal Court (FG) confirmed the view of the tax authorities that contributions to a foreign pension fund do not constitute a benefit in kind, but rather cash wages. The appeal was authorised due to its fundamental importance and is pending before the Federal Fiscal Court (BFH) under case no. VI R 13/24.
Facts of the case
The plaintiff is a domestic subsidiary of a global group, where foreign employees were employed on a temporary assignment abroad. Group employees are offered a company pension scheme by the respective group employer in the form of contributions to the pension fund in the respective country in addition to the wages already owed. The contributions paid give employees a direct, irrevocable legal claim against the pension fund of the country in which the employer is based. As agreed, the transferring employer also continues to pay contributions into the pension fund of the home country for Group employees for the duration of their employment abroad. The contribution costs are passed on to the Group company receiving the employee. No payment is made to the employees. The contributions were not taxed on wages by the plaintiff.
From Stefan Sperandio and Gurkaran Singh
Annual Tax Act (JStG) 2024
In its session on 18 October 2024, the Bundestag passed the Annual Tax Act 2024 (JStG 2024). The Bundesrat approved it in its session on 22 November 2024. The publication in the Federal Law Gazette is still pending. The JStG 2024 also contains relevant changes for employment tax. Below, we outline the most important changes relevant to employment tax:
Group Clause in the Deferred Taxation of Monetary Benefits from Equity Participation (§ 19a para. 1 sent. 3 German Income Tax Act (EStG) new version (n.v.))
In the future, not only will monetary benefits be taxable on a deferred basis when employees are given shares in the employer's company, but also when shares in affiliated companies are transferred, even if the thresholds of paragraph 3 are not exceeded with respect to the entirety of all group companies and the establishment of any group company was not more than 20 years ago.
This regulation comes into force retroactively on 1 January 2024.
Wage Tax Allowances (§ 39a Para. 1 No. 9 and Para. 2 EStG n.v.)
The addition of number 9 enables single parents who are permanently separated from their partner to consider the proportional relief amount from the month of separation as an allowance for the employment tax deduction procedure, provided that the additional requirements for the single parent's relief amount as per § 24b EStG are met. Additionally, according to § 39a Para. 2 EStG n.v., the deadline for applying for the wage tax allowance is to be moved to November 1 of the previous year for which the allowance is to apply.
This regulation applies from the day after the law is promulgated.
From Stefan Sperandio, Johanna Wolter and Simeon Wahl
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