In a preliminary legal protection procedure, the Munich Finance Court expressed serious legal doubts about the constitutionality of the amount of the suspension interest of 0.5% per month of suspension for interest periods from 2019.
Mit Beschluss vom 24.06.2024 (Az. 7 V 11/24), the Munich Finance Court explains that the interest-paying provisions under Sections 233 et seq. AO as a whole involve a standardized compensation of benefits. The Federal Fiscal Court also ruled in its judgment of July 1, 2024 (ref. IX R 31/13, BStBl. II 2014, p. 925) that the obligation to pay interest on suspended tax amounts is intended to at least partially skim off the interest advantage.
Although the Federal Constitutional Court explicitly refrained from extending the declaration of incompatibility to other interest-bearing provisions of the Fiscal Code in its decision of July 8, 2021 (case no. 1 BvR 2237/14) on the unconstitutionality of the level of the interest rate for calculating interest on back tax payments and refunds, this does not lead to a substantive constitutional review of the regulation on suspension interest.
However, the Munich Finance Court concludes from the regulatory concept of a uniform and standardized determination of an interest advantage for the individual interest-bearing circumstances according to Sections 233 et seq. of the Fiscal Code that the amount of the suspension interest, as decided by the Federal Constitutional Court for interest on tax arrears and refunds, is also unconstitutional for interest periods from January 1, 2019.
Hinweis: So far, the tax courts have ruled that the amount of the suspension interest is constitutional (FG Baden-Württemberg, final judgment of May 11, 2023, ref. 1 K 180/22, and FG Münster, final decision of February 10, 2023, ref. 3 V 2464/22, and judgment of March 8, 2023, ref. 6 K 2094/22 E). However, an appeal against the latter judgment is pending before the Federal Fiscal Court under ref. VIII R 9/23.
