Judgment of the Düsseldorf Tax Court of December 11, 2024 (Ref.: 4 K 507/24 VTa)
I. The facts
The plaintiff, owner of a retail business, was inspected by customs officials on February 13, 2023. During the inspection, untaxed liquids, flavors, and bases for e-cigarettes were seized. The defendant (customs administration) subsequently assessed tobacco tax with a notice dated May 2, 2023, which it later increased with an amended notice dated March 11, 2024. The plaintiff filed an objection and, in the course of the proceedings, brought an action for failure to act.
He argued that taxation was inadmissible because the filling quantities were not correctly determined and obviously a different product was taxed, which could not be attributed to him. Furthermore, the taxation according to § 23f para. 1 no. 4 alt. 2 TabStG was not applicable, since the goods had already been manufactured by German manufacturers and were initially held in possession by them. The plaintiff also invoked a missing subsequent taxation obligation for so-called “old goods” that were placed on the market before July 1, 2022, and therefore were not provided with tax stamps.
II. The decision of the court
The Düsseldorf Tax Court (FG) dismissed the action and confirmed the tax assessment by the customs administration.
From the FG’s point of view, the seized tobacco products were taxable substitutes for tobacco products (§ 1 para. 1, para. 2c TabStG). According to § 1b sentence 1 in conjunction with § 23f para. 1 no. 4 alt. 2 TabStG, the tobacco tax was incurred by the plaintiff’s possession of untaxed goods in the tax territory. They were located in the business premises of the retail business operated by him and in tax-free circulation, as they were not covered by any of the procedures mentioned in § 4 no. 2 TabStG. The tax had also not yet been levied in the tax territory, as the tobacco products were not provided with tax stamps.
From the FG’s point of view, a tax exemption for goods placed on the market before July 1, 2022, was not provided for. The legal basis for taxation is – even if it should concern so-called “old goods” – § 23f para. 1 no. 4 alt. 2 TabStG. In this context, it was irrelevant for the FG that the best-before date had already been exceeded for some of the goods, because the mere exceeding of the best-before date does not allow the conclusion that the goods could no longer have been used as tobacco products (§ 23f para. 2 sentence 1 no. 2, sentence 2 in conjunction with § 15 para. 3 sentence 2 TabStG).
From the court’s point of view, the objection of quantity differences was also incorrect, because the differences between the initial inspection and the renewed counting by the customs officials were plausibly presented. Since the untaxed goods were located in the plaintiff’s business premises, he was liable to pay tax as the owner of the establishment pursuant to § 23f para. 3 sentence 1 no. 3 TabStG.
Consequently, the FG dismissed the action and confirmed the tax assessment. However, it allowed the appeal to the Federal Fiscal Court due to the fundamental importance of the legal matter.
