Definition and Significance of the Supplementary Notice
The supplementary notice is an administrative act that is issued to complete an already existing administrative act. Its purpose is to subsequently make regulations or add details that were incorrect, incomplete, or omitted in the original notice. As a rule, a supplementary notice is an independent administrative act that refers to an earlier administrative act and supplements its regulatory content without reissuing or replacing it.
Legal Bases of the Supplementary Notice
Statutory Provisions
The legal foundation for the supplementary notice is not explicitly found in law, nor does a specific statutory term for this instrument exist. However, the option to supplement an administrative act arises from general principles of administrative procedure law as well as judicially developed administrative practice. In particular, § 44a of the Code of Administrative Court Procedure (VwGO) and the principles of the Administrative Procedure Act (VwVfG), especially concerning the finality and effectiveness of administrative acts (§§ 35 et seq. VwVfG), are decisive here. Supplementary notices are also applied in other areas of law, for example in tax law or social law.
Distinction from Other Administrative Acts
A supplementary notice differs from notices of amendment, annulment, or correction in that its purpose is not to amend, correct, or replace the original notice, but to complete it in terms of content. Supplementary notices may only address matters that were omitted from the original notice and that already required regulation at the time of the principal notice’s issuance.
Requirements for the Issuance of a Supplementary Notice
Incompleteness of the Initial Notice
The prerequisite for a supplementary notice is that the original administrative act is incomplete, meaning that essential parts, elements, or details are missing which are necessary for the complete regulation of the matter. The incompleteness may relate both to the operative provisions and to the reasoning.
Subsequent Supplementation Legally Permissible
It is required that the supplementation is still legally possible at a later date. This is particularly the case if the original notice has not yet become final or the supplementation is made within a reasonable period. The supplementation must relate to the same subject matter and must not introduce new decisions that would substantially alter the original administrative act.
Notification of the Duty to Supplement
In special cases (for example, in the case of an action against an incomplete administrative act), the issuing authority may be required to point out the need for supplementation already in the main notice or to issue a supplementary notice at the request of the affected parties.
Form and Content of the Supplementary Notice
Formal Requirements
The supplementary notice must be designated and substantiated as an independent administrative act. The formal requirements, such as written form, notification, and obligation to state reasons, correspond to those of the original notice (see § 37 VwVfG). The supplementary notice must clearly refer to the administrative act to be supplemented.
Material Scope
The supplementary notice may only address the points left out or inadequately regulated in the original notice. It may not introduce new regulations independent from the basic notice.
Notification and Legal Consequences
The notification of the supplementary notice follows the general principles for notification of administrative acts. The legal consequences of the supplementary notice take effect upon its notification. For the further legal process, the supplementary notice can be contested as an independent administrative act.
Legal Remedies and Legal Protection Against the Supplementary Notice
Objection and Legal Action
The affected party may use the legal remedies available against other administrative acts to challenge a supplementary notice. In particular, an objection or legal action may be lodged. The time limits usually start anew, insofar as the supplement can be challenged independently or has an independent regulatory effect.
Relationship to the Principal Notice in Legal Proceedings
Within the context of legal proceedings, the supplementary notice is usually consolidated with the original administrative act so that the administrative courts can comprehensively review the entire regulatory context. Lodging a legal remedy against the supplementary notice does not invalidate the main notice unless the latter is also successfully challenged.
Practical Areas of Application for the Supplementary Notice
Tax Law
In tax law, the supplementary notice is particularly applied when significant details or calculations were omitted in a tax assessment notice and are subsequently made up for. The supplementary notice then ensures that the taxation is complete and proper. The regulations for this are primarily set out in the Fiscal Code (AO).
Social Law
A supplementary notice can also be relevant in social law, for instance if benefits are granted but certain types or periods of benefits are either not regulated or only inadequately addressed. Authorities are required to promptly complete missing information through a supplementary notice.
Other Areas of Application
Supplementary notices are also commonly used in building law, trade law, and regulatory law. For example, a supplementary notice may be issued if, in the initial building administrative act, requirements or ancillary provisions were overlooked.
Significance and Limits of the Supplementary Notice
Supplementary notices serve to ensure the rule of law by safeguarding the completeness and effectiveness of administrative procedures. They enable a prompt and subsequent completion of administrative acts already issued, without the need to repeat the entire procedure. However, they are limited wherever a subsequent supplementation would result in an impermissible substantive change to the original administrative act or finality has already occurred.
Literature References and Further Sources
- Administrative Procedure Act (VwVfG), in particular §§ 35 et seq.
- Code of Administrative Court Procedure (VwGO), in particular § 44a
- Fiscal Code (AO) for Tax Notices
- Standard reference works on general administrative law
Note: This article provides a comprehensive and objective overview of the legal significance, requirements, areas of application, and limits of the supplementary notice in administrative law.
Frequently Asked Questions
What legal requirements must be met for the issuance of a supplementary notice?
According to § 120 AO (Fiscal Code), a supplementary notice may only be issued if, in a tax assessment notice or administrative act, ancillary decisions—such as regarding interest, late payment surcharges, costs, or other ancillary services—were wholly or partly omitted. The determination may only pertain to the ancillary service to be subsequently assessed; the underlying circumstances and the main decision are expressly not subject to another review by the supplementary notice. Furthermore, the competent tax authority must recognize the omission of the ancillary decision or be informed thereof. A supplementary notice is only permissible if there is no case of subsequent amendment (e.g. § 129 AO, correction of obvious errors) or correction due to newly discovered facts. In addition, the right to issue a supplementary notice generally exists only within the assessment period according to § 169 AO.
What time limits apply for the issuance of a supplementary notice?
The standard assessment period under § 169 AO generally applies for the issuance of a supplementary notice, which is usually four years, calculated from the arising of the tax or notification of the original tax assessment notice. A supplementary notice involving only ancillary decisions may only be issued within this period. If the assessment period has expired, a supplementary notice may no longer be prepared. Additionally, it must be observed that in case of an incomplete ancillary decision, an appeal must be lodged first; only if neither appeal nor corrective measures are effective does the supplementary notice become the legal instrument.
To what extent is a legal remedy possible against a supplementary notice?
As a rule, an appeal (Einspruch) is available to the affected party against a supplementary notice, provided it concerns an administrative act. The appeal must be lodged with the issuing tax office and—just as with other tax notices—must be filed within one month of notification of the supplementary notice. In the appeals procedure, the legality of the supplementary notice can be reviewed, including whether a supplementation was actually necessary or permissible. If the appeal is unsuccessful, the fiscal courts have jurisdiction. It is important to note that the legal remedy is substantively limited to the supplemented ancillary decision; the main decision, which is already final, generally remains unaffected.
Does the supplementary notice differ from a correction or rectification under the AO?
The supplementary notice (§ 120 AO) is legally fundamentally different from other correction and rectification mechanisms in tax law. While rectification under § 129 AO relates to obvious errors (e.g., typographical errors) in decisions already taken, and amendment notices under §§ 172 et seq. AO are issued due to new facts or evidence, the supplementary notice has an entirely separate field of application: it serves solely for the subsequent supplementation of ancillary decisions (e.g., decision on costs, interest decision) that have not yet been taken in a notice already issued. The main decision and facts may not be reopened; otherwise, the supplementary notice would be unlawful.
In what cases is a supplementary notice inadmissible?
A supplementary notice is legally inadmissible if the original decision did not relate to any ancillary decisions or if ancillary services were deliberately left unaddressed (intentional omission). The same applies if the defect is based on reasons outside the authority’s sphere (e.g., procedural errors, lack of competence). Also, any attempt to use a supplementary notice to amend a principal decision after it has become final is inadmissible, since the scope of the provision is strictly limited under EU and constitutional law to supplementing an actually missing, originally forgotten ancillary decision. Finally, a supplementary notice may not be used to subsequently regulate substantively ‘accidentally forgotten’ material main issues from the authority’s point of view.
What formal requirements must a supplementary notice meet?
Formally, a supplementary notice must refer to the original notice and clearly state which ancillary services are subsequently being determined or regulated. The supplementary notice is an independent administrative act and is therefore subject to the requirements pursuant to § 119 AO, particularly with regard to clarity and reasoning. The reasoning must set out why and to what extent the original notice requires supplementation in relation to ancillary services. The notice must be properly communicated to the affected party; only upon notification does the period for legal remedies begin. If the required reasoning is missing, this may lead to the illegality and, where applicable, contestability of the supplementary notice.
