§ 153 AO already imposes special duties of cooperation on taxpayers. The introduction of Section 153 sectio 4 AO is now an extension of the duty to correct. It is intended to speed up external audits. In particular, the focus is on so-called follow-up audits, where the adjustment of annual financial statements to previous audits takes a lot of time and the taxpayer now has to make the necessary adjustments themselves.
In brief:
Previously, taxpayers were obliged to report incorrect or incomplete declarations to the tax authorities immediately if they became aware of them and to correct them if this resulted or could result in tax reductions.
This obligation has now been supplemented by paragraph 4, which stipulates that
„The obligation to notify and correct also exists if the audit findings of an external audit have been incontestably implemented in a tax assessment notice, an assessment notice pursuant to § 180 section 1 sentence 1 no. 2 or a partial final assessment notice pursuant to § 180 section 1a and the facts underlying the audit findings also lead to a change in the tax bases in another declaration submitted by or for the taxpayer that was not the subject of the external audit.“
This innovation applies to all taxes arising after December 31, 2024, i.e. also to tax periods before 2025, namely those for which an audit order is announced from January 1, 2025. It is therefore important to consider the impact of this extension.
Prerequisites
§ 153 section 4 AO firstly requires that the audit findings of an external audit have been implemented in a tax assessment notice, a declaratory notice or a partial final assessment notice in an incontestable manner. The assessment is incontestable if no further objection can be lodged against it.
In addition, the facts on which the audit findings are based must also lead to a change in the tax bases in another declaration submitted by or for the taxpayer that was not the subject of the external audit. This may also affect tax types that have not been audited. The declaration to be corrected in accordance with § 153 section 4 AO does not have to have been incorrect or incomplete when it was submitted. Rather, it is sufficient if the external audit takes a different view in this respect.
Consequences
Taxpayers must now check more carefully whether the results of an external audit can have an impact on other tax returns that have not yet been audited. In this respect, it is still unclear whether the taxpayer must have positive knowledge that the facts will also lead to a change in another return. The wording does not indicate a requirement for such positive knowledge. However, an obligation independent of knowledge would lead to comprehensive and far-reaching audit obligations for the taxpayer.
If the taxpayer does not comply with this obligation and breaches the duty to correct and investigate, he could be accused of a criminally relevant reckless tax reduction in accordance with § 378 AO or even tax evasion in accordance with § 370 AO – possibly by omission. In these cases, you should discuss with us whether a voluntary disclosure exempting from prosecution in accordance with § 371 AO is appropriate.
Conclusion
The regulation of an extended obligation to investigate and correct harbors tax and criminal law risks. It is therefore strongly recommended that, following an external audit, you check final tax assessments in future for findings that could potentially affect other declarations that have already been submitted. If you have any questions, please contact us at mail@pragal-prinzenberg.de.
