By decision of May 8, 2024 (Ref. VIII R 9/23), the Federal Fiscal Court (BFH) has submitted to the Federal Constitutional Court the question of whether the statutory suspension interest rate of 0.5% per month (6% p.a.) for the period from January 1, 2019 to April 15, 2021 violates the principle of equality under Article 3(1) of the German Basic Law. Additionally, the Fiscal Court of Cologne has raised constitutional doubts concerning this interest rate, even beyond the aforementioned period. .
Background to the decision
Suspension interest in tax law
An appeal or a lawsuit against a tax assessment does not automatically have a suspensive effect. However, upon request, a suspension of enforcement (AdV) can be granted. If the legal remedy ultimately fails, the amount deferred is subject to retroactive interest (§ 237 in conjunction with § 238(1) AO). .
Historical interest rate development
Since 1961, the statutory interest rate for all interest facts under the Fiscal Code has been 0.5% per month – this also applies to AdV interest. . However, a reform in 2018 reduced the interest rate for back payments and refunds under § 233a AO to 0.15% per month (1.8% p.a.) – for AdV interest, it remained unchanged at the previous high level. .
Assessment by the BFH
Violation of the equality principle
The BFH finds unequal treatment: Taxpayers who owe AdV interest continue to pay 6% p.a., while those who owe interest on back payments have paid only 1.8% p.a. since 2019. The court considers this disparity to be constitutionally problematic. .
Objective of standardization and low interest rate period
The interest regulation serves legitimate purposes – skimming off liquidity advantages and preventing unnecessary proceedings. However, an interest rate of 6% p.a. is no longer suitable in times of persistently low interest rates to appropriately fulfill this purpose. .
Access to legal protection
The BFH criticizes that the high interest burden could indirectly make access to legal remedies more difficult – especially for taxpayers without sufficient liquidity or outside capital. .
Further developments
Submission to the Federal Constitutional Court
The Federal Constitutional Court will now conclusively examine whether the statutory interest rate for AdV interest during the specified period is compatible with the principle of equality. .
Decisions at the state level
The Fiscal Court of Cologne had already declared in April 2025 (Ref. 4 V 444/25) in an expedited procedure that increased doubts could continue to exist even after 2021 and that the granting of interim legal protection is to be refused. .
Consequences for practice
The tax authorities will not independently correct existing interest notifications. Affected parties should therefore file an appeal or bring an action to enable potentially more favorable future decisions. .
Significance for affected parties
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Financial relief
If the proceedings succeed before the Federal Constitutional Court, taxpayers could be released from significant interest liabilities, especially in protracted proceedings.
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Effects on legal protection
The high level of interest could act as a deterrent and thus restrict access to judicial review.
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Strategic options
For companies and high-net-worth individuals, it is advisable to review the status of individual proceedings to protect against excessive interest burdens.
Outlook & recommendations for action
The results of the review by the Federal Constitutional Court are still pending. Regardless, for those affected by suspension interest the following steps are particularly recommended:
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File an objection against the interest notice
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Apply for provisional suspension of enforcement
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Pursue legal recourse via objection or lawsuit
Only in this way can the potential reimbursement of interest already paid be ensured.
Companies, investors, and high-net-worth individuals who wish to engage in the current debate on suspension interest or plan specific procedural steps are in MTR Legal Rechtsanwalt in good hands. We support you in strategic assessment, the filing of legal remedies, and legal representation – please feel free to contact us regarding this matter.
