The VI Senate of the Bundesfinanzhof has dismissed as unfounded the complaint of a witness
Bundesfinanzhof against a Finanzgericht orderBundesfinanzhof that imposed the costs caused by her absence, a coercive fine of €100Bundesfinanzhof and, in case the fine cannot be collected, one day of coercive detention for each €25Bundesfinanzhof. The witness, summoned alongside others for the hearing of 23 June 2026 in proceedings 16 K 16113/25 before the Finanzgericht Berlin-Brandenburg, had stayed away without giving notice of any impediment before the hearingBundesfinanzhof. The Senate decided by order of 30 September 2026 (VI B 45/26) and placed the costs of the complaint proceedings on the complainant.
The summons had been issued by order of 28 May 2026, served with proof of service on 29 May 2026, for the oral hearing and taking of evidence on 23 June 2026 at 14:00, with the complainant's examination scheduled from 14:30. The summons letter asked her to report any impediment and warned her of the consequences of an unexcused absence under § 380 Abs. 1 ZPO. Shortly before the hearing the claimant's representative had sought a postponement and video participation; the presiding judge rejected the postponement on 22 June 2026 and refused video participation for the claimant and the witnesses, insisting on personal attendance.
As her excuse the complainant pleaded an understandable misunderstanding about whether the summons was still maintained, arguing the procedural situation had been unusually confusing for a legal layperson, with disputes over postponement, video participation and recusal running until just before the hearing. The Senate holds that such a misunderstanding does not excuse the absence of a duly summoned witnessBundesfinanzhof. A sufficient excuse requires grave reasonsBundesfinanzhof, and only external events beyond the witness's control count: a breakdown of means of transport, the witness's own illness or a serious illness of a close relativeBundesfinanzhof.
Nor was the complainant freed from the duty to appear by her position as the claimant's spouseBundesfinanzhof. A duly summoned witnessBundesfinanzhof who claims a right to refuse testimony is freed from appearing only if the refusal is declared before the hearing in writing or for the court recordBundesfinanzhof, as § 386 Abs. 3 ZPO provides. The complainant never declared the spousal privilege she invoked — available under § 84 Abs. 1 FGO in conjunction with § 101 Abs. 1 Satz 1 AO — to the Finanzgericht in that form.Bundesfinanzhof
Because the absence was unexcusedBundesfinanzhof, the imposition of the resulting costs in a basic costs decision was mandatory, with no discretion for the courtBundesfinanzhof; whether such costs actually arose is settled later in the assessment of costs. The measures also stand although the testimony proved unnecessaryBundesfinanzhof — the Finanzgericht decided the case by judgment the same day — since coercive measures under § 380 ZPO are in principle still required in that situationBundesfinanzhof.
The amount is not objectionableBundesfinanzhof. The statutory range runs from €5 to €1,000 for the fineBundesfinanzhof and one day to six weeks for coercive detentionBundesfinanzhof, and the decisive factors are the significance of the matter and the testimony, the gravity of the breach and the witness's means. The Finanzgericht accounted for the specifics of the dispute, notably that the case ended without the absent witnesses so no fresh summons was needed. The substitute detention of one day per €25 follows the statute directlyBundesfinanzhof and is not disproportionateBundesfinanzhof. Legal basis: §§ 82, 84 Abs. 1 and 132 FGO, §§ 380 Abs. 1, 381 Abs. 1 and 386 Abs. 1 and 3 ZPO, § 101 Abs. 1 Satz 1 AO and Art. 6 EGStGB.
Advise summoned witnesses to report any impediment or declare a refusal to testify to the Finanzgericht in writing before the hearing, since a misunderstanding about the summons excuses nothing.
