A tax-investigation measure stops the assessment clock only for the tax flowing from the matters actually under investigation
Bundesfinanzhof, and only when the taxpayer can recognise which factual complex is being investigatedBundesfinanzhof. In its judgment of 19 August 2026Bundesfinanzhof (X R 8/25Bundesfinanzhof, STRE202610200) the X Senate of the Bundesfinanzhof rejects the tax office's revisionBundesfinanzhof against the Finanzgericht Münster judgment of 23 January 2025Bundesfinanzhof (12 K 19/14 E) and orders the office to bear the revision costs.
The case concerned the 2001 income tax of a separately assessed woman in whose name a sole proprietorship had been registered, assumed to have been transferred to S by gift at the end of 2003. She filed the 2001 return in 2002; the first assessment followed on 6 March 2003 subject to review. The amended assessment of 28 January 2010Bundesfinanzhof, based on section 164(2) of the Abgabenordnung, substantially increased trade income by disallowing claimed business expenses. By the third proceedings before the Senate, after judgments of 6 May 2020 (X R 26/19) and 31 January 2024 (X R 7/22), only the timeliness of that 2010 assessment remained disputedBundesfinanzhof.
On 3 May 2006 officers searched the business premisesBundesfinanzhof in proceedings first directed against another person, then opened a criminal-tax investigation against the plaintiff the same dayBundesfinanzhof for suspected evasion of 2001 income tax without formally notifying herBundesfinanzhof. The criminal case was discontinued on 13 January 2010 for lack of proof of intent; a fine for reckless understatement followed in 2012.
Without tolling, the five-year period for a merely reckless error, running from the end of 2002Bundesfinanzhof, ended on 31 December 2007Bundesfinanzhof under section 169(2) sentence 2, second alternativeBundesfinanzhof. The Senate agrees that section 171(5) sentence 2 fails for lack of formal notificationBundesfinanzhof and that section 171(7) extended the period only until 10 March 2008Bundesfinanzhof, so the January 2010 assessment is late unless section 171(5) sentence 1 tolled itBundesfinanzhof.
Objectively, the Senate confirms that tolling is punctualBundesfinanzhof. The word "insoweit" confines it to the Steuerfahndung investigationsBundesfinanzhof, unlike an external audit under section 171(4), which suspends expiry for the taxes the audit covers. Because the Fahndung investigates tax crimes and determines bases only in those cases under section 208(1) sentence 1 nos. 1 and 2Bundesfinanzhof, the suspension reaches only taxes arising from the investigated mattersBundesfinanzhof.
Subjectively, the taxpayer must recognise before the untolled period expires not only that investigations are under way but which complex they concernBundesfinanzhof. The Senate joins the VIII Senate's judgments of 3 July 2018 (VIII R 9/16, VIII R 10/16) and 17 November 2015 (VIII R 67/13), abandoning the looser I Senate view in the judgment of 24 April 2002 (I R 25/01)Bundesfinanzhof, which the I Senate gave up by order of 3 June 2026 under section 11(3) of the Finanzgerichtsordnung. Only this keeps objective and subjective sides aligned and contains a suspension that otherwise runs until the resulting assessments become unappealable.
Here the plaintiff knew investigations targeted herBundesfinanzhof but could not discern the complexesBundesfinanzhof. The note of 4 May 2006 mentioned only one of two commission payments and not the alleged sham invoice of a GmbH; the search report of 5 May 2006 spoke only of manipulated business expenses. Counsel's file-inspection requests of 3 May and 21 August 2006 were refused; access would have revealed the complexes. The seizure list named no specific complex. The reports of 2 and 16 November 2009 first named them but reached her only after the extended period expired on 10 March 2008Bundesfinanzhof.
Legal basis is section 171(5) sentence 1 of the Abgabenordnung as interpreted in BFH X R 8/25 of 19 August 2026Bundesfinanzhof.
If you litigate a limitation dispute after a Steuerfahndung investigation, check what the client could actually recognise before the untolled period expired: without proof the client knew the concrete factual complex, argue that section 171(5) sentence 1 of the Abgabenordnung did not toll the period.
