ADMINISTRATIVE HIGH COURT: REMAINING APPEAL PERIOD TO BE CALCULATED ON THE BASIS OF THE (LAST) APPLICATION FOR A FILING EXTENSION

Overview

The Administrative High Court already clarified in its ruling from 2020 (5 March 2020, Ro 2019/15/0008) how a remaining deadline is to be calculated. According to the Court, the suspension commences on the date of submission of the application and lasts until the end of the day on which the decision on the request has been delivered. The date of submission of the request is therefore to be included in the calculation of the remaining appeal period. In a recent ruling (30 June 2021, Ra 2021/15/0019), the Administrative High Court dealt with the question, how a remaining deadline is to be calculated if the taxpayer applied for a further (second) filing extension.

Facts of the case

The taxpayer appealed against an income tax assessment. The tax office partially granted the appeal and issued a preliminary decision (“Beschwerdevorentscheidung”), which was delivered on 16 November 2017. On 14 December 2017, the appellant applied for filing extension to file the appeal with the Tax Appeal´s Court (“Vorlageantrag”; note: the remaining period at that time to file the appeal with the Tax Appeal´s Court was five days). The application was granted by the tax office on 18 December 2017 and the deadline was extended to 31 January 2018. On 31 January 2018, the appellant requested another application for a filing extension. That application was denied on 12 February 2018. Subsequently, the appellant submitted the appeal with the Tax Appeal´s Court 14 February 2018.

Ruling of the Administrative High Court

It was questionable whether the outstanding appeal period of five days remaining from the first application for a filing extension was "consumed" by the granting of the request and the setting of a new deadline, or whether the appellant was still entitled to this outstanding appeal period after the rejection of the second application for a filing extension. The Administrative High Court stated that the concept of suspension of the appeal period constitutes a protection for the appellant. If an application for a filing extension is rejected, the appellant may file the appeal within the remaining period. However, this need for protection is no longer required if an application for a filing extension has already been granted once. In this case the appellant has already been permitted a longer period for the submission. Therefore, the remaining period resulting from the first application for filing extension cannot be used with regard to further extension applications.

In the present case, the remaining period to file the appeal with the Tax Appeal´s Court of five days was "consumed" by granting the first application for a filing extension and extending the deadline to 31 January 2018. With the submission of the second application on 31 January 2018 and thus on the last day of the (extended) appeal period, the appellant only had one day remaining of the appeal period after notification of the rejection of the second application for filing extension. The appellant should thus have filed the appeal by 13 February 2018 at the latest, resulting in the submission on 14 February 2018 as not timely.

Conclusion

The request for a filing extension suspends the appeal period as of the date on which it is submitted. Provided that the application for a filing extension has been granted and a new deadline has been set, the remaining period cannot be considered for further filing extension requests as is was already "consumed". According to the ruling of the Administrative High Court, the remaining appeal period – in case the extension request is denied – must therefore always be calculated with regard to the (last) request for a filing extension.