Late-payment surcharges accruing while a Finanzgericht leaves the file untouched are compensable delay damage
Bundesfinanzhof. The X. Senat of the Bundesfinanzhof held on 29 September 2026, X K 2/24 (X K 7/21), that Säumniszuschläge can constitute a materieller Nachteil under § 198 Abs. 1 Satz 1 GVGBundesfinanzhof, awarding EUR 3,000Bundesfinanzhof for six monthsBundesfinanzhof of unreasonable delayBundesfinanzhof, plus Prozesszinsen at five points over the base rateBundesfinanzhof since 1 January 2023Bundesfinanzhof. Delay in one instance cannot be offset by fast handling on appealBundesfinanzhof: under the Drei-Phasen-Modell for Finanzgericht proceedings, each instance is judged on its own inactivityBundesfinanzhof.
The case, 3 K 1046/09 in Sachsen-AnhaltBundesfinanzhof, concerned amended income, trade-tax and VAT notices for 1998 to 2001 after an audit. After legal aid in June 2009, a missed filing, a bias motion in August 2009 and paused review during settlement talks, the file lay untouched for over two yearsBundesfinanzhof, with nothing promoting the case from 2012 until the bias motion was rejectedBundesfinanzhof in November 2014Bundesfinanzhof. The Verzögerungsrüge of 19 January 2015 under § 198 Abs. 3 GVGBundesfinanzhof led to listing for 11 November 2015 and dismissal as inadmissible; the Senat vacated that judgment in March 2016, X B 202/15, and remanded, and the parties settled in November 2019 in the second instance. The immaterial-damage limb was settled earlier with EUR 2,800 paidBundesfinanzhof.
Because the case was already delayed when the ÜberlVfRSchG entered into force on 3 December 2011Bundesfinanzhof, Art. 23 Satz 2 and 3 required a rüge within three months to preserve earlier periodsBundesfinanzhof; the 2015 rüge founds claims only from January 2015Bundesfinanzhof. Only months in the final phase where the file lies untouched countBundesfinanzhof. January 2015 was active (bias decision served)Bundesfinanzhof and June 2015 was active (summons)Bundesfinanzhof; of the five-month listing lead timeBundesfinanzhof, September and October 2015 were unreasonable given nearly six years of pendency and a lodged rügeBundesfinanzhof. February to May 2015 were inactiveBundesfinanzhof, yielding six monthsBundesfinanzhof. Work on the parallel file and waiting for files from the BFH complaint did not countBundesfinanzhof.
Säumniszuschläge arise by law at 1% per commenced month under § 240 AOBundesfinanzhof, rounded down, without assessment or faultBundesfinanzhof, because tax-court suits have no suspensive effect under § 361 Abs. 1 AO and § 69 Abs. 1 FGOBundesfinanzhof. Non-payment starts with the taxpayer, but court inactivity adds a second cause for the delay monthsBundesfinanzhof. With a six-year first instanceBundesfinanzhof and payment immediately after judgment via a 6% counsel loanBundesfinanzhof that stopped further surcharges, the court delay outweighed the prior defaultBundesfinanzhof and no 50% haircut appliedBundesfinanzhof. Recomputed per tax the monthly surcharge was EUR 500Bundesfinanzhof, so six months give EUR 3,000Bundesfinanzhof; alleged loan-interest damage failed for lack of proof.
Prozesszinsen under § 291 Satz 1 Halbsatz 1 BGB are an independent ancillary claim, not part of § 198 compensationBundesfinanzhof, so the six-month § 198 Abs. 5 Satz 2 GVG period does not applyBundesfinanzhof. The suit became pending on 3 December 2020Bundesfinanzhof with interest from 4 December 2020Bundesfinanzhof, but interest to 31 December 2022 was time-barred under §§ 195, 199 BGBBundesfinanzhof after the limitation pleaBundesfinanzhof and the plaintiff's August 2026 restrictionBundesfinanzhof, leaving interest from 1 January 2023Bundesfinanzhof. Costs to 21 August 2026 fall 76% on the plaintiff and 24% on the defendantBundesfinanzhof; later costs on the defendantBundesfinanzhof.
Legal basis is § 198 GVG, Art. 23 ÜberlVfRSchG, § 240 Abs. 1 AO and §§ 187, 195, 199, 291 and 288 Abs. 1 Satz 2 BGBBundesfinanzhof as applied in BFH judgment X K 2/24 of 29 September 2026Bundesfinanzhof.
