Can a party-commissioned expert report be used before the tax court?
Yes, but not as court expert evidence. An expert within the meaning of § 81 Abs. 1 Satz 2 FGO — the German Fiscal Court Code — is someone the court itself calls in. A report commissioned by a party is qualified party submission: factual submission supported by documents. It therefore forms part of the overall result of the proceedings from which the court forms its conviction under § 96 Abs. 1 Satz 1 FGO, and it may not be passed over.
Why that is not a disadvantage
Party submission sounds weaker than expert evidence but often works more strongly in practice. The court investigates the facts of its own motion under § 76 Abs. 1 Satz 1 FGO. Substantiated submission underpinned by figures and documents sets that duty in motion: it obliges the court to engage with the facts submitted — and can give cause to call in an expert of its own.
How it is classified
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.
| Point | Legal basis | What follows from it |
|---|---|---|
| Who counts as an expert | § 81 Abs. 1 Satz 2 FGO | The court may examine experts — meaning those the court has called in. |
| What it counts as | § 96 Abs. 1 Satz 1 FGO | The court decides from the overall result of the proceedings; the submission is part of it. |
| Investigation of its own motion | § 76 Abs. 1 Satz 1 FGO | The court investigates the facts of its own motion; substantiated submission sets that in motion. |
| Cooperation | § 76 Abs. 1 Satz 3 FGO | The parties must make their statements on factual circumstances completely and truthfully. |
| The deadline in court | § 79b Abs. 3 FGO | Statements and evidence submitted late may be rejected. |
| The deadline before that | § 364b Abs. 2 AO | The authority too may set a deadline after which evidence may be disregarded. |
What such a report has to achieve
For it to work as qualified submission and not be read as a party brief, it needs three properties: complete — not an extract but the whole period; traceable — every figure leads back to a document; reproducible — a third party reaches the same result from the same data. If one of them is missing, it is open to attack no matter how carefully the arithmetic was done.
And what it must not do
It must not appraise. A report that tells the court how to decide oversteps its task and thereby weakens itself. Establishing facts is the expert's task, appraising them is the court's — § 96 Abs. 1 Satz 1 FGO says it expressly: according to the free conviction gained from the overall result of the proceedings.
What we contribute
We establish facts and present them so that a third party can recalculate them — completely, traceably, reproducibly. Findings that speak against the client are in there too. The appraisal we leave to the court, the legal representation to your lawyer.
Measured against Europe’s strictest standard
Intensity of judicial review — this standard is not equally high everywhere. It is documented for 6 legal orders.
We ourselves propose that the result be examined by a court-appointed expert.
In our register this axis is recorded as met in 6 of 6 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.