FIFO applied unilaterally
The tax office calculates on FIFO although you declared a different disposal sequence. Whether any particular method is mandatory is unresolved.
Sec. 347 AO
Service · Legal position 08/2026
Appeals and litigation on crypto assessments
On almost every core question of crypto taxation there is no decision from the highest court. Anyone who lets an assessment become final gives up any later correction — including where a court agrees with them years afterwards.
The essentials
- The appeal period is one month from notification and cannot be extended.
- The appeal procedure is free of charge; court fees arise only in litigation.
- Where a test case on your question is already pending, your appeal is stayed — you share in the outcome without litigation risk.
- Suspension of enforcement defers payment while serious doubts about legality exist.
- We are currently conducting five cases of our own before the tax courts and the Federal Fiscal Court.
When an appeal is worthwhile
Six constellations in which we regularly advise appealing — usually combined with an application for a stay.
Personal rate instead of 25 per cent
Lending income recorded as other income. The classification is before the Federal Fiscal Court — the difference can be twenty percentage points.
Allocation treated as income across the board
Where the allocation rules were only fixed after the snapshot, it is doubtful whether there is a taxable supply at all.
Total loss not recognised
Platform insolvency, hack or theft: the claim as income-related expenses is often refused. We advance it with reasons.
Old years still being amended
The extended assessment period presupposes evasion or recklessness. Without that, no assessment may be made at all.
An estimated assessment on patchy data
Where histories are missing, the base is estimated — rarely in the taxpayer's favour. Reconstructed data allows the estimate to be attacked.
The cheapest route: a stay rather than your own litigation
The route fewest people know about, and the right one in most cases. It exists in two versions, and the difference decides whether you depend on anyone's consent.
Version 1: stay by operation of law, sec. 363(2) sentence 2 AO
Where a case on your legal question is already pending before the Federal Fiscal Court, the Federal Constitutional Court or the European Court of Justice, and your appeal relies on it, the proceedings are stayed by operation of law. The tax office does not have to agree — it has no discretion.
That is precisely the position for the lending case pending before the Federal Fiscal Court.
Version 2: stay by consent, sec. 363(2) sentence 1 AO
Where no test case is pending yet, because the question is being raised for the first time, the proceedings may be stayed with the tax office's consent. Here the decision lies with the authority.
Our experience: tax offices agree almost without exception, and generally for reasons of administrative economy. An appeal that will sit until a point of principle is decided ties up capacity on both sides that nobody wants to spend. There is, however, no entitlement to it; the decision remains with the tax office.
- Costfree of charge, no court cost risk
- Effortone letter, once the legal question is settled
- Conditionappeal within one month of notification
- Effecta share in the outcome of the test case
- Under sentence 2no consent of the tax office required
If the decision goes in your favour, your assessment is amended without your having litigated. If it goes the other way, the existing assessment stands. No litigation cost risk arises either way.
The only condition is that you keep the appeal period. Anyone who lets it pass is excluded from a later favourable judgment — even where they would have been right on the substance.
What we have already achieved
Not every dispute ends in court. Some are won in the administrative procedure — and then work for everyone.
Loss carry-back 2022
achieved nationwide
Loss carry-back despite final assessments
After the price collapse of 2022, many investors faced the same problem: substantial gains had been taxed in the previous year and those assessments had become final. Losses arose in the following year on what was economically the same position — but the carry-back initially failed on the finality of the earlier assessment.
We developed the legal argument, put it to the tax offices and prevailed in almost every case. The clients concerned received tax back from the earlier year without having to litigate.
Why this is here
Because it shows what matters in these proceedings: a sound argument, advanced early enough, usually spares the litigation. We litigate where it is necessary — we would rather resolve the matter before that.
Statements about earlier proceedings describe our experience. No particular outcome for your case can be derived from them — every set of facts and every legal position has to be assessed on its own.
Five cases we are conducting ourselves
Not waited for, but brought. What is decided there works for everyone who kept their assessments open.
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BFH VIII R 22/25 appeal pending
Crypto lending: investment income or other income?
The central question is the concept of money in section 20(1) no 7 EStG. Lower court: Cologne Tax Court, 3 K 194/23.
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FG Berlin-Brandenburg 4 V 4039/26 suspension won
Disposal sequence: LIFO against FIFO
Order of 12 June 2026: suspension of enforcement granted because the tax office applied FIFO where the taxpayer had calculated on LIFO.
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FG Niedersachsen 10 K 165/23 claim pending
Gains computed per wallet or across wallets
Is computation per wallet mandatory under the Ministry circular? The answer shifts acquisition dates and with them the holding period.
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FG Baden-Württemberg 4 K 2402/25 claim pending
Airdrops with rules fixed afterwards
Is there a taxable supply in the ENS airdrop where the allocation rules were only settled after the snapshot?
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FG Baden-Württemberg 2 K 306/26 claim pending
No reckless tax evasion
The Anlage SO form has asked about crypto gains separately only since 2023 — anyone who entered nothing before that completed the form as it was put to them.
What we are preparing
Two questions on which we are preparing cases. Neither is pending yet — we name them here so that those affected can keep their assessments open in time.
Art. 3(1) GG
in preparation
A test case against a switch to the flat-rate withholding tax
If the legislature were to allocate crypto assets to investment income alone, while gold, commodities, foreign currency balances and real property remain within section 23 EStG, that would create unequal treatment within the same category. It would require justification against the general guarantee of equality. There is the further risk of a structural enforcement deficit if a new regime takes effect before reporting channels and the transfer of acquisition data actually work.
What this means for you
If the switch comes, the first assessments will be issued on that basis. Anyone who then appeals and applies for a stay shares in the outcome. The reasoning in detail
Mining
in preparation
Are block rewards taxable on receipt — or only on sale?
The tax authorities value mined coins at the market price when they accrue. Two objections seem to us to need clarification. The economic one: if the price then falls, tax is payable on a value never realised — with an asset class of this volatility, hardly a marginal case.
The systematic one: with self-mined coins the asset only comes into existence through your own activity. Whether that already constitutes a realised increase in wealth at the moment of creation, or whether taxation ought to attach to the disposal instead, is a question of the realisation principle — and therefore of ability to pay.
What this means for you
Anyone mining and holding the rewards should not let the assessment become final. Mining and node operation (in German)
Affected? Get in touch
- If one of these questions affects you, we will add you to the list and let you know as soon as a case is pending.
- This is not a commitment to conduct any particular case — whether and when a claim is brought depends on finding suitable facts.
- For your own assessment the position is separate: the one-month appeal period runs from the moment the assessment is notified.
How it runs
Step 1
Check the deadline
First we establish when the assessment was notified and how much time remains. That can be done the same day — everything else can then follow at a measured pace.
Step 2
Lodge the appeal
To preserve the deadline, initially without full reasons. The appeal secures your rights; the arguments can follow.
Step 3
Apply for suspension of enforcement
Where serious doubts exist, we apply for suspension so that the tax in dispute does not have to be paid for the time being.
Step 4
Set out the reasons
Facts, law, authorities. With crypto assets that regularly also means deriving the figures again, because the assessment rests on incorrect data.
Step 5
Stay or continue
Where a suitable test case exists, your appeal is stayed. Where none exists, we decide together whether to litigate.
Step 6
Litigation
Representation before the tax court and, on questions of principle, up to the Federal Fiscal Court. Before that step we discuss prospects and cost risk openly.
Cost and risk
The question everyone asks — here without embellishment.
Appeal
Free of charge at the tax office
No court or administrative fees arise. What you bear is our fee under the German tax advisers' fee regulation, whose range we state in advance.
Suspension
Time gained, risk carrying interest
If the assessment is upheld in the end, the suspended amount becomes payable with interest under section 237 AO. Suspension buys liquidity; it does not remove the risk.
Litigation
Court fees and cost risk
In litigation court fees are added, and the costs of the proceedings fall on the losing party. Legal expenses insurance covers tax disputes in part — we check that in advance.
In most cases the cost question does not arise at all, because an appeal and a stay are enough. We advise litigating only where no suitable test case exists and the amount at stake justifies the effort. Our fees
Questions and answers
How long do I have to appeal?
One month from notification of the assessment, section 355(1) of the Fiscal Code. Where the assessment is sent by post, notification is deemed to occur on the third day after posting. Once the period has run, the assessment becomes final and can be changed only in narrow exceptions. Come to us early, therefore — even before you have decided whether you want the argument.
Can I lodge the appeal in English myself?
You can, and it is effective. German is the official language of the tax authorities under section 87(1) of the Fiscal Code, but that does not make a foreign-language appeal invalid. Section 87(2) gives the authority a discretion to request a translation, and section 87(4) protects your deadline: the appeal counts as submitted on the day it arrived, provided you supply the translation within the reasonable period the authority sets — and it must warn you of the consequence when setting that period. The risk sits in that second deadline: miss it, and the date the translation arrives governs, by which time the month for appealing has usually run. So we draft in German. Not because English fails, but because German removes a step, a deadline and any argument about it.
Do I still have to pay the tax in dispute?
In principle yes, because an appeal does not suspend enforcement. Payment can be deferred by applying for suspension of enforcement under section 361 of the Fiscal Code where there are serious doubts about the legality of the assessment. In a case we are conducting, the Berlin-Brandenburg Tax Court ordered exactly that.
What does a stay of proceedings mean?
Where a case on your legal question is already pending before the Federal Fiscal Court or the Federal Constitutional Court, your appeal is stayed under section 363(2) of the Fiscal Code until that case is decided. You carry no litigation risk of your own and still benefit from the outcome. It is by some distance the cheapest way to keep a contested question open.
Does the tax office have to agree to the stay?
That depends on which route applies. Where a case on your legal question is already pending before the Federal Fiscal Court, the Federal Constitutional Court or the European Court of Justice, and your appeal relies on it, the proceedings are stayed by operation of law under section 363(2) sentence 2 — no consent is needed. Where no such case exists yet, consent under sentence 1 is required. In our experience it is granted almost without exception, because an appeal left lying is less work for the authority than a contested decision.
What does an appeal cost?
The appeal procedure itself is free of charge; there are no court fees. What you bear is our fee under the German tax advisers' fee regulation. In subsequent litigation court fees are added, and the costs of the proceedings fall on the losing party.
What happens if the suspension ultimately fails?
If the assessment is later upheld, the suspended amount becomes payable and bears interest under section 237 of the Fiscal Code. Suspension therefore buys liquidity and time; it does not remove the risk. We tell you our view of the prospects beforehand.
Can you act for other advisers?
Yes. A substantial part of our litigation work is support work: establishing the tax base, checking limitation periods, reasoning contested positions and preparing opinions — for fellow tax advisers and for criminal defence counsel.
Responsible for content: Matthias Steger, German certified tax advisor (Steuerberater), nine years as a tax auditor, court-appointed expert at the Frankfurt (Oder) Regional Court.
Legal position: 25 August 2026. Sources: sections 237, 347, 355, 361 and 363(2) of the Fiscal Code; article 3(1) of the Basic Law; the case numbers listed above.
Statements about cases in preparation describe an intention, not a commitment. This page is not advice on an individual case. Where this English text and the German version differ, the German version governs.
Legal position: 25 August 2026. Sources: sections 237, 347, 355, 361 and 363(2) of the Fiscal Code; article 3(1) of the Basic Law; the case numbers listed above.
Statements about cases in preparation describe an intention, not a commitment. This page is not advice on an individual case. Where this English text and the German version differ, the German version governs.