The official forms must be used for the group application.

To include a group member in the tax-based corporate group, § 9 of the KStG requires that the group application be signed by each domestic entity to be included before the end of that fiscal year, for which the allocation of the tax-relevant profit is to take effect for the first time.

The BFG had to deal with a case (GZ RV/7102169/2022 from February 3, 2023) in which the group-holding company submitted a formless application to form a tax group (all participating capital companies have December 31 as the balance sheet date) via FinanzOnline on December 23, 2021 - using "Other Applications" as there is no own input form for a group application in FinanzOnline. Subsequently, the financial authority responded with a deficiency correction order - which was ultimately unsuccessful for the company, as despite signing the group application in February 2022 and submitting it to the financial authority via registered mail, group formation for the year 2021 was no longer possible. The signing of the group application before the end of the relevant business year is a material requirement. Therefore, a late signing of the forms is not a remediable deficiency.

In its decision, the BFG emphasized that the application to form a corporate group requires the use of official forms. The official forms for the group application G1, G2 and G4 cannot be filled out and submitted online – they are only available in paper form. Therefore, these forms must be printed out and submitted in their original form. Submitting the forms as "Other Application" in FinanzOnline is ineffective. According to the BFG, in the present case, the tax office should not have even issued a deficiency correction order, as the deficiency (the delayed signing) could no longer have been remedied.

For the practice, this means that official forms such as the group application must be submitted by post with an original signature (registered) or personally to the relevant tax office. In contrast, the submission via FinanzOnline is not considered a legal "nothing" according to the BFG. According to information published as a response to the BFG's ruling at the end of March 2023 by the BMF, it will also be possible to upload forms using the "other submission" function if the forms have been signed using a qualified electronic signature.

Image: © Adobe Stock - Jo Panuwat D