How high may an add-back be?
There is no fixed upper limit. The statute names neither a percentage nor a maximum amount. The limit is not a figure but a requirement placed on the calculation: under § 162 Abs. 1 Satz 2 AO — the German Fiscal Code — all circumstances of significance for the estimate must be taken into account. An estimate is therefore not open to attack merely because it is high, but because it leaves circumstances out.
Why “too high” on its own is not an argument
Whoever attacks an add-back only as to its size must explain which amount would be correct — and then faces the same task as the authority. Whoever instead measures it against whether all significant circumstances were taken into account attacks the statutory yardstick. That is the difference between an opinion about the figure and an objection to the calculation.
What the amount must be measured against
The provisions in this table are German law. Most European legal orders know the same principle — set out verbatim and by country in the register of legal bases.
| Yardstick | Legal basis | Meaning |
|---|---|---|
| Completeness of circumstances | § 162 Abs. 1 Satz 2 AO | All circumstances of significance for the estimate must be taken into account. |
| Favourable circumstances too | § 88 Abs. 1 Satz 2 AO | Expressly including circumstances favourable to the parties. |
| Only so far as necessary | § 162 Abs. 1 Satz 1 AO | Estimation only in so far as nothing can be established or calculated. |
| Austria | § 184 Abs. 1 BAO | Word for word the German yardstick: all circumstances of significance for the estimate. |
| Norway | § 12-2 Abs. 2 skatteforvaltningsloven | The discretion is to be set at what appears correct from the information in the case — not at what is defensible. |
| Sweden | 57 kap. 1 § skatteförfarandelagen | At what appears reasonable having regard to the material on file. |
| Czechia | § 98 Abs. 2 daňového řádu | In estimating, circumstances favourable to the taxpayer must be taken into account — even where he has not invoked them. |
The lever lies in what is on file
Three of the orders named — Norway, Sweden and Germany — tie the estimate expressly to what is present: to the information in the case, to the file, to the significant circumstances. Whoever completes the file thereby changes the statutory yardstick itself against which the amount is measured. That is more effective than any statement about which figure would be appropriate.
Two countries estimate upwards by statute
For completeness, because it shows that “high” does not mean “unlawful”: Sweden, when estimating by standard formula, applies the highest amount of the three preceding periods (57 kap. 3 § skatteförfarandelagen). And in Iceland the estimate under the Income Tax Act is to be set generously enough that there is no risk of estimating too low.
What we contribute
We do not put a figure on what would be appropriate. We establish which figure follows from the documents — completely, traceably and so that it can be recalculated. The appraisal stays with the tax office and the court.
Measured against Europe’s strictest standard
Traceability of the calculation — this standard is not equally high everywhere. It is at its strictest where it reads: The estimate must be made so generously that there is no risk of the amounts being estimated lower than they actually are (Lög um tekjuskatt nr. 90/2003, 95. gr., Iceland).
Every figure leads back to a document and every calculation step is disclosed, so that a third party can recalculate the result without special software.
In our register this axis is recorded as exceeded in 26 of 26 documented legal orders. The assessment is ours and can be read country by country with its source — it is not a third party’s certification.
The legal provisions reproduced here are for information and do not replace legal advice. For application in an individual case the legal position at the time of the proceedings must be examined by a lawyer admitted in the country and field concerned.