BFG: Submission of group applications via FinanzOnline inadmissible
In a recent decision, the Federal Fiscal Court (BFG) deemed the submission of a group application via FinanzOnline to be inadmissible. The practice now sees it as a challenge to the legislator.
A prerequisite for the formation of a group of companies pursuant to section 9 KStG is a written group application. The group application must be demonstrably signed using the official forms (G-forms) at the latest before the end of the financial year for which the allocation of taxable profits is to take effect for the first time (section 9 subsection 8, second indent, KStG). The group application must then be submitted to the competent tax office within one month of the signature of the last legal representative (section 9 (8) fifth sub-paragraph KStG).
In practice, group applications are often submitted via FinanzOnline as “other submissions”. According to the current BFG decision, this is no longer possible, as the BFG considers such submissions to be inadmissible or not in compliance with the deadline.
Decision of the BFG
In its decision of 3 February 2023, RV/7102169/2022, the BFG states that the function “application for a group assessment notice” or “group application” is not available as a function in the online tax procedure. Accordingly, it was also technically not possible in Finanz-Online to fill out and submit online the official forms that must be used pursuant to section 9 (8) KStG. The official forms are only available in paper form and can therefore only be submitted in the original and, because of the required verifiable signature, in writing.
If a group application is submitted to the tax authority by a non-permitted means (e.g. as another submission via FinanzOnline), it is deemed not to have been submitted and can therefore neither trigger the duty to decide nor entitle the tax authority to make a decision; in the absence of a suitable submission, not even a rejection can be considered (VwGH 27.09.2012, 2012/16/0082). A submission submitted in an inadmissible manner and therefore irrelevant does not become a relevant submission and is not cured by the fact that the tax authority (initially) took it into consideration (VwGH 03.09.2019, Ra 2019/15/0081). Consequently, a procedure to remedy defects (section 85 BAO) is not required.
The BFG’s decision is of great practical importance and holds material explosiveness. If the submission via FinanzOnline is deemed legally inadmissible, this could result in the formation of a group at a later date. This would exclude compensable group losses as so-called pre-group losses from being deductible in the tax group that was only formed later.
In order to meet the deadline, group applications will therefore have to be submitted by post (registered letter). This is surprising and seems to be out of time.
It is now up to the legislator, in accordance with the communicated objective of a modern and digital Austrian tax administration, to provide the legal framework for the submission of group applications via FinanzOnline.