Austrian Supreme Administrative Court (VwGH)’s decision on “Databox-Gate”: Incorrect order of delivery of reopening notices and new tax assessment notices due to automation – immaterial

The starting point of the decision is the “incorrect” order of delivery of notices due to an IT error at the Austrian tax authorities. New “assessment notices” (such as corporate income tax assessment notices) sometimes arrived in the taxpayer’s FinanzOnline databox before the corresponding annulment or reopening notices (“procedural notices”). Because of the enormous significance of the error and the large number of taxpayers affected, this system error by the Austrian tax authorities also drew substantial media attention (News Orf.at).

With the decision of 28 May 2026 (VwGH 28/5/2026, Ro 2026/15/0021), the VwGH clarified that an incorrect order of delivery of procedural and new assessment notices caused solely by automation does not affect the validity of those notices.

Initial situation and the Austrian Federal Tax Court (BFG)’s view

After a tax audit, the tax office issued new tax assessment notices including corresponding reopening notices. All notices were delivered via FinanzOnline into the Databox. The new tax assessment notices were served several hours before the reopening notices. One reopening notice was not even received on the same day.

However, the tax office had approved all of the notices at the same time, by means of a “single keystroke”. The reversed order of delivery was attributable solely to the fully automated electronic service process and was within the tax office’s control.

In the BFG’s view, the new assessment notices were unlawful (on the basis of res judicata), because the original tax assessment notices had not yet been annulled by the reopening notices at the time the new assessment notices were delivered. Notwithstanding that unlawfulness, the new income tax assessment notices would displace the original ones. Accordingly, the new assessment notices were annulled by the BFG due to their unlawfulness.

VwGH decision

The VwGH overturned the BFG’s decision, finding it unlawful:

• According to the VwGH, the tax office’s intention in issuing the notices simultaneously was unquestionable, in order to comply with the requirement for connecting the reopening notice with the new assessment notice of section 307 para. 1 Austrian Federal Tax Code (BAO).
• The incorrect order of delivery resulted solely from technical errors in the electronic processing and IT-controlled service.
• Pursuant to section 293 BAO, errors arising exclusively from the use of an automated data-processing system may be corrected.
• The VwGH identified a genuine (unintended) legal gap, as the legislator had not considered that internal IT processes could cause an incorrect order of delivery. This gap is to be filled by analogy to section 293 BAO.
• Ultimately, notices issued with joint approval and served by automated processing are deemed to have been served simultaneously, irrespective of the actual order of delivery.

Summary and implications in practice

According to the VwGH, an incorrect order of delivery of notices purely for IT-related reasons is not to the detriment of the Austrian tax authorities where the actual intention in issuing the notices was clearly directed toward a joint or connected issuance.

The decision is not limited to reopening notices. The “requirement of connection” also applies to annulment notices under section 299 para 2 BAO and the new assessment notices associated with them.

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