23 September 2010
Pursuant to a new decision of the German Federal Tax Court (BFH) law suits can under certain preconditions also be effectively filed via scanned signature.
In the case at hand (BFH of June 22, 2010, VIII R 38/08) the tax consultant signed the statement of claim. Then he scanned the document and sent it to a colleague of the same law firm via email. Subsequently the colleague printed out the scanned document and submitted it to the tax court via facsimile within the period in which an action must be brought.
BFH held that the statement of claim transferred via facsimile has been effectively submitted to the court. The fact that the signature on the facsimile was only scanned was not considered as a detrimental fact.
The BFH insofar changed the consistent court practice, according to which a document sent to the court via a traditional facsimile must always be the original of the statement of claim signed by the plaintiff or his representative (BFH of July 10, 2002, VII B 6/02).
Requirement of Writing
According to Section 64 of the Tax Court Code (FGO) a lawsuit must be filed “in writing”. In practice this legal requirement “in writing” is, in addition to the observance of the one month limitation period, one of the important barriers for an effective filing of the action.
The basic principle is the personal signature (“manu propria”) of the statement of claim. In the age of the electronic media, however, it is increasingly unclear when an action is filed “in writing”.
Accepted Ways of Transfer
The Reichsgericht (the predecessor of the BFH) already admitted the filing of an action via telegram. Teletype messages and the transfer via such a facsimile, with which the personally signed original statement of claim is sent to the court, is also accepted.
According to a decision of the joint senate of the highest federal courts in Germany a transfer via computer facsimile is also sufficient. A computer facsimile is a facsimile where the data is transferred electronically to the court with a scanned in signature (GmSOGB of April 5, 2000, GmS-OGB 1/98).
Transfer via Email
However, it is now as before unclear whether the principles developed by the joint senate can also be applied to the statement of claims sent to the court via a simple email. Hitherto the courts insofar follow a restrictive line.
Taxpayers should definitively not file their actions to the tax courts in the future via a simple email. The new decision of the BFH does not refer to the filing of a claim via a simple email, but via a traditional facsimile, whereby the statement of claim has been sent on the basis of a scanned signature.
Actions to the tax courts should therefore now as before be brought to the tax courts via letter or facsimile.
However, it has to be stated that the BFH has taken a significant step towards the electronic age with the decision of June 22, 2010.
If you would like more information about the foregoing, please contact the authors of this Legal Update,
at +49 69 79 41 1311 and
at +49 69 79 41 1591.
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