In its decision of 5 January 2017, the Federal Fiscal Court ruled that incorrect information in the opening of a tax suspension procedure for spirits tax will invalidate the opening. As a result, when the goods were removed from the tax warehouse, they were removed from customs supervision and the main customs office imposed a tax on spirits. Companies should ensure correct information when opening tax suspension procedures.
No approval by automated confirmation
A company delivered goods subject to tax on spirits from a tax warehouse. A tax transit procedure should be opened for each export. When drafting the necessary electronic shipping documents (eVD) in the Excise Movement and Control System (EMCS), the company provided incorrect product codes for the products and in some cases also the incorrect alcohol content. The main customs office then assigned reference codes for the tax suspension procedures and confirmed the export. In the company’s view, this was an approval. However, the BFH made it clear that this could not be considered a formal authorisation. On the one hand, a check of the information in the FDEA is only automated. Secondly, an export certificate based on false information supplied by the exporter cannot give rise to legitimate expectations.
Withdrawal from customs supervision
Due to the incorrect information, a tax suspension procedure could not be effectively opened. The tax on spirits arose from the transfer to free circulation under spirits tax law. The main customs office was therefore right to impose a tax on the supplies of spirits. There is much to suggest that the decision of the Federal Fiscal Court is also applicable to tax suspension procedures for other excise duties. Companies should exercise particular care in filing tax suspension procedures due to the high financial risks associated with misrepresentation.