With judgment of 15.07.2015 – 4 K 43/15, the tax court Hamburg granted the action against a tobacco tax assessment. During a search of the plaintiff’s house, the customs authorities found considerable quantities of duty unpaid and untaxed cigarettes with Ukrainian tax stamps in Germany. On the ground that the plaintiff was liable for tax on possession of the cigarettes, the defendant levied customs duty, tobacco tax and import sales tax plus interest.
If the itinerary is unclear, possession is not sufficient for the tax liability
For the FG Hamburg it was not clear whether the cigarettes were imported from an EU third country or from another EU member state. The Ukrainian tax stamps do not unequivocally prove that the goods have been transported by land to Germany. In the case of imports from an EU third country, the court found that the possession was not sufficient for a tax liability. In the event of cigarettes being moved from another EU Member State, possession would be sufficient for the tax liability. However, there is no unequivocal evidence of spending it.
No reinterpretation into a liability notice
The FG Hamburg also rejected a reinterpretation of the tobacco tax assessment notice into a liability notice under general tax law. On the one hand, the completely different conditions of the tax and liability assessment would be opposed. On the other hand, the liability decisionwould be illegal due to loss of measurement This made the levying of tobacco tax, the corresponding import sales tax and interest illegal.
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