Insights
TAX & BUSINESS
No reinstatement to the previous state due to missed deadline because of holiday
A holiday does not relieve one from the duty to ensure proper representation and deadline monitoring.
If a taxpayer or his representative misses a deadline, such as an appeal deadline, reinstatement to the previous state must be granted on the applicant’s request if he can credibly demonstrate that he was prevented from meeting the deadline by an unforeseen or unavoidable event.
Absent due to holiday
In one case a solicitor submitted an application for reinstatement to the previous state after a deadline for filing a request for a preliminary objection to a tax office’s pre‑decision on an appeal was missed, because the pre‑decision was submitted three days too late. This was caused by a one‑off, unforeseeable error by an otherwise very reliable member of the firm. However, the original reinstatement application did not allege any breach of the organisational duty.
Only during the appeal was it argued that the firm member possessed sufficient expertise to calculate deadlines himself and to record them correctly in the deadline calendar and in the case file. These entries were also regularly checked. The error, however, went unnoticed because the lawyer responsible for the checks was absent on holiday during the deadline entry and therefore the case file was not presented to him.
Decision of the Federal Fiscal Court (BFG)
The BFG rejected the application for reinstatement to the previous state. The missed deadline was initially explained in the reinstatement application solely by a one‑off mistake of an otherwise reliable firm member. An argument concerning the solicitor’s lack of breach of the organisational duty was only raised in the subsequent objection to the decision. Such a substitution of the reinstatement ground in the appellate procedure is inadmissible. Consequently, the argument was not taken into account, and the application was to be dismissed on this basis alone.
Furthermore, the BFG found no substantive ground for reinstatement. Where the applicant cited his holiday‑related absence as the reason for the missed deadline, the court clarified that a holiday is a planned and foreseeable event. A solicitor is obliged to ensure appropriate representation and control of his firm’s operations during his absence. Such organisational fault is attributable to the solicitor and excludes reinstatement.
Conclusion
The BFG’s ruling highlights the strict requirements for reinstatement to the previous state. It is essential that the reasons for the missed deadline are set out in full in the reinstatement application. Moreover, a holiday does not relieve a solicitor of his organisational duty. Anyone who fails to ensure a functioning firm representation during his absence acts culpably.
Absent due to holiday
In one case a solicitor submitted an application for reinstatement to the previous state after a deadline for filing a request for a preliminary objection to a tax office’s pre‑decision on an appeal was missed, because the pre‑decision was submitted three days too late. This was caused by a one‑off, unforeseeable error by an otherwise very reliable member of the firm. However, the original reinstatement application did not allege any breach of the organisational duty.
Only during the appeal was it argued that the firm member possessed sufficient expertise to calculate deadlines himself and to record them correctly in the deadline calendar and in the case file. These entries were also regularly checked. The error, however, went unnoticed because the lawyer responsible for the checks was absent on holiday during the deadline entry and therefore the case file was not presented to him.
Decision of the Federal Fiscal Court (BFG)
The BFG rejected the application for reinstatement to the previous state. The missed deadline was initially explained in the reinstatement application solely by a one‑off mistake of an otherwise reliable firm member. An argument concerning the solicitor’s lack of breach of the organisational duty was only raised in the subsequent objection to the decision. Such a substitution of the reinstatement ground in the appellate procedure is inadmissible. Consequently, the argument was not taken into account, and the application was to be dismissed on this basis alone.
Furthermore, the BFG found no substantive ground for reinstatement. Where the applicant cited his holiday‑related absence as the reason for the missed deadline, the court clarified that a holiday is a planned and foreseeable event. A solicitor is obliged to ensure appropriate representation and control of his firm’s operations during his absence. Such organisational fault is attributable to the solicitor and excludes reinstatement.
Conclusion
The BFG’s ruling highlights the strict requirements for reinstatement to the previous state. It is essential that the reasons for the missed deadline are set out in full in the reinstatement application. Moreover, a holiday does not relieve a solicitor of his organisational duty. Anyone who fails to ensure a functioning firm representation during his absence acts culpably.