BFH relaxes requirements for rebutting the presumption of access

In its decision of July 29, 2025 (Ref. VI R 6/23), the Federal Fiscal Court made a decision on the notification of administrative acts that is significant for tax procedural practice. The focus is on the question of under what conditions the legal presumption of disclosure pursuant to Art. 122 (2) No. 1 of the German General Tax Code (AO) can be rebutted when tax offices send appeal decisions by regular mail, in particular via private postal service providers. 

The case: Dispatch of an appeal decision by private postal service 

The starting point for the decision was an appeal by the plaintiff against his income tax assessment notice. The tax office's decision to reject the appeal was dated Friday, January 28, 2022, and was sent by regular mail to the plaintiff's tax advisor. The tax office commissioned a private postal service provider to deliver the letter, which only delivers regularly from Tuesday through Friday in the commercial area where the tax firm is located. Mail that was scheduled for Saturday delivery was not delivered in practice until the following Monday. The appeal decision was not actually received at the attorney of record's office until February 3, 2022, and was stamped with that date. No mail log was kept, and the envelope was no longer available. On the basis of this receipt, the plaintiff filed a lawsuit against the negative appeal decision on March 3, 2022. The Münster Fiscal Court (decision of May 11, 2023 – Ref. 8 K 520/22 E), which dealt with the matter, pointed out to the parties during the proceedings that there were doubts as to whether the deadline for filing the lawsuit had been met. The plaintiff argued that, according to his tax advisor's receipt stamp, the appeal decision had actually been received on February 3, 2022, and that he had therefore met the deadline. According to the plaintiff, the tax office had not commissioned a reliable postal service provider and therefore bore the overall burden of proof for delivery. 

Nevertheless, the Fiscal Court dismissed the action as inadmissible due to non-compliance with the deadline for filing an action. The plaintiff had not rebutted the legal presumption of disclosure. The receipt stamp from his tax advisor submitted by the plaintiff was not sufficient for this purpose. The shipping data provided by the shipping service provider allowed for the date on which the letter was posted by the tax office to be traced, meaning that, according to the Fiscal Court, sufficient objective evidence was available. 

The decision: Three-day presumption can be rebutted with sufficient evidence 

The BFH took a different view in its appeal and overturned the Fiscal Court’s decision. The Senate clarified that substantiated evidence of structural delivery problems may be sufficient to justify considerable doubt as to whether the letter was received within the three-day period. Although the legal presumption pursuant to Art. 122 (2) No. 1 AO is generally strong, it can be undermined by plausible and comprehensible facts. According to the BFH, the requirement to present substantiated facts must not lead to the reversal of the objective burden of proof, which according to the law lies with the tax office, to the detriment of the taxpayer. In the BFH’s opinion, it is rather decisive that the taxpayer presents specific circumstances which show that typical delivery within the three-day period applicable at the time (since January 1, 2025, a four-day presumption has applied) is not guaranteed in the specific delivery area. This could be the case, as in the dispute, particularly in private-sector logistics models with limited delivery days. The case was referred back to the Münster Fiscal Court for further clarification of the facts.  

Significance for practice 

In practice, the decision means a noticeable strengthening of legal protection options. Tax advisors and specialist lawyers should keep a closer eye on their clients' delivery processes in future and document structural peculiarities at an early stage. At the same time, it emphasizes that tax offices making extensive use of private postal service providers could be subject to increased obligations to provide evidence in the event of a dispute. The decision shows that formally posting the document alone is not sufficient in individual cases if actual receipt is doubtful. With this decision, the BFH once again confirms that the notification of an administrative act is not a mere formality, but a central procedural point of reference whose requirements must be carefully examined in the event of a dispute.