BFH suspends tobacco-tax alternative assessment as seriously doubtful

A tobacco-tax assessment that holds the taxpayer liable on alternative grounds — either as tobacco-tax debtor under §§ 15, 21 or 23 Tabaksteuergesetz or as liability debtor under § 71 AO for Steuerhinterziehung or Steuerhehlerei — is seriously doubtful as to its lawfulness where no third possibility remainsBundesfinanzhof. That is the holding of the VII. Senat's order of 10 September 2026 (VII B 24/25, AdV)Bundesfinanzhof: under the court's more recent case law it is unresolved whether a Wahlfeststellungsbescheid of that kind is permissible in tobacco-tax lawBundesfinanzhof, and that unresolved question alone compels interim relief.

The Hauptzollamt had assessed the applicant by a notice headed "Abgabenbescheid über Tabaksteuer (Wahlfeststellungsbescheid) gemäß §§ 15/21/23 Tabaksteuergesetz, ggf. i.V.m. § 71 Abgabenordnung"Bundesfinanzhof, on the ground that he had realised a tobacco-tax fact pattern either as tax debtor or as liability debtor, while the transport route, origin and his exact role were unknown. Objection and application for suspension of enforcement (Aussetzung der Vollziehung) failed before the Hauptzollamt, and the Hessisches Finanzgericht dismissed the judicial AdV application on 15 January 2025 (7 V 891/24). The lower court considered the alternative assessment admissible, citing the Senat's 1983 order (VII B 30/83, VII B 33/83), and saw no obstacle in the recent exclusivity case law, reasoning that the Wahlfeststellungsbescheid prevents simultaneous recourse by fixing in the operative part that the amount rests on one basis or the other.

The VII. Senat reverses on the complaint admitted in the tenorBundesfinanzhof. Relief follows on summarische Prüfung under § 69 Abs. 3 Satz 1 in conjunction with Abs. 2 Satz 2 FGO: weighty reasons creating uncertainty over a decisive question suffice, and where the law is unclear enforcement is as a rule suspended. The exclusivity rule itself is settled: whoever is obliged to pay tobacco tax as tax debtor as possessor of untaxed cigarettes in Germany cannot at the same time be pursued for the same tax by liability notice under § 71 AOBundesfinanzhof (Senat judgment of 23 June 2020, VII R 56/18). But whether issuing a Wahlfeststellungsbescheid breaches that principle has not been addressed in the recent case lawBundesfinanzhof. In 1983 the Senat saw no serious doubt and accepted alternative recourse at least where the person's conduct made him either a customs- and excise-law tax debtor or a liability debtor for evasion or dealing, with no third possibility. Whether the Senat still stands by the 1983 view has never been decided sinceBundesfinanzhof, so on summary review the assessment's lawfulness is doubtfulBundesfinanzhof and the fundamental question stays reserved to the main proceedings (7 K 888/24). The applicant's further objections need not be reached.

Both alternatives are genuinely open on the facts: whether the cigarettes came from a third country or another Member State could not be clarified — an unprovability the Hauptzollamt confirmed — while its findings show the applicant possessed untaxed cigarettes and dealt in them. Enforcement is suspended without security until one month after service of the judgment in the main proceedings or other termination of the actionBundesfinanzhof; the Hauptzollamt pleaded nothing on security or the applicant's means while he pleaded undue hardship. Costs fall on the respondent under § 135 Abs. 1 FGO.

Legal basis: §§ 15, 21 and 23 TabStG; § 71 AO; § 69 Abs. 3 Satz 1 in conjunction with Abs. 2 Satz 2 and § 135 Abs. 1 FGO.