On 12 February 2026, the Higher Administrative Court (Cour administrative, the “Court”) issued a decision in case No 53399C, clarifying the formal requirements for tax complaints under § 249 of the General Tax Law (Abgabenordnung, the "AO").
Facts of the case
On 1 July 2021, a Luxembourg limited liability company (the “Company”) filed its tax return for the 2019 tax year with the Luxembourg direct tax authorities (Administration des contributions directes). On 14 July 2021, the tax office issued, on the basis of § 100a (1) AO, the corporate income tax and municipal business tax assessment for the 2019 tax year, as well as the unitary value and net wealth tax assessments as at 1 January 2020 (the “Tax Assessments”).
By letter dated 24 August 2021 (the “Letter”), the Company wrote to the tax office to inform it that the 2019 annual accounts did not adequately reflect the economic reality of the Company and did not give a true and fair view thereof, that those accounts were shortly to be amended and that a rectified tax return would be submitted for the 2019 tax year.
On 11 November 2021, the Company electronically filed its rectified tax return for the 2019 tax year. The tax office acknowledged receipt thereof whilst indicating that the Tax Assessments had become final (coulés en force de chose décidée) and that an amendment on the basis of § 94 (1) AO was no longer possible.
In these circumstances, the Company lodged an appeal against the Tax Assessments with the Lower Administrative Court (Tribunal administratif). The Lower Administrative Court declared the appeal inadmissible, qualifying the Letter as a mere statement of intent designed to put the tax office on notice of a forthcoming rectified tax return, rather than a complaint within the meaning of § 228 AO. The Company appealed that judgment before the Higher Administrative Court.
Findings of the Court
Two main issues were dealt with by the Court:
The characterisation of the Letter: was it to be considered a mere statement of intent, a request for amendment under § 94 AO, or a complaint within the meaning of § 228 AO?
The validity of the Letter in the pre-litigation phase, given that it bore the signature of a single director only, whereas the Company's articles of association required the joint signature of two directors of categories A and B for acts falling outside the scope of day-to-day management.
Characterisation of the Letter
The Court begins by recalling that § 249 AO requires only that the wording of a complaint indicates that the taxpayer considers himself aggrieved by the tax assessment and is seeking a review, whilst reducing all other formal requirements to a strict minimum. § 249 (2) AO further calls for a broad interpretation: a taxpayer's tax returns are to be regarded as a complaint whenever the complaint procedure is the avenue that serves his interests, the essential criterion being the objective the taxpayer seeks to achieve.
Whilst acknowledging the suggestive and implicit nature of the wording of the Letter, the Court overturns the finding of the Lower Administrative Court. The indication that the annual accounts do not give a true and fair view implies that the tax bases do not reflect reality, thereby conveying a grievance arising from the Tax Assessments. The announcement of a forthcoming amended tax return must, furthermore, be understood as a request for review whose precise scope would be set out at a later stage.
The Court then notes that the distinction between an application for rectification under § 94 AO and a complaint under § 228 AO lies in the objective pursued: the former seeks to correct a specific and isolated point, whereas the latter challenges the tax assessment as a whole. Given its suggestive wording, the Letter does not contain sufficiently clear indications to determine which of the two avenues was intended.
The Court identifies four cumulative factors: (i) the amendments to the 2019 annual accounts had a material impact on the Company's taxable position; (ii) an amended tax return accompanied by the relevant accounting documents is sufficient to enable the director to conduct a review; (iii) the complaint procedure was the only avenue still available, the time limit under § 94 AO having expired; and (iv) a taxpayer's tax returns are to be regarded as a complaint whenever that avenue is the one that serves his interests.
In view of all these factors, the Court concludes that the Letter must be characterised as a complaint within the meaning of § 228 AO.
Validity of the signature on the Letter
The State argued that the Letter was invalid as a complaint, as it bore the signature of a single director only, whereas the Company's articles of association required the joint signature of two directors of categories A and B for acts falling outside the scope of day-to-day management.
The Court drew a distinction between the litigation and pre-litigation phases: the rules governing the representation of a legal person in judicial proceedings concern the capacity to act before the courts and cannot be transposed to the pre-litigation phase, which is governed by the AO. Moreover, even if the filing of a complaint were to be regarded as an act exceeding the limits of day-to-day management, the Court held that it follows from § 249 (1), second sentence, AO that a complaint filed on behalf of a company need not bear all the signatures normally required under company law, provided that the content of the complaint enables the identity of its author to be established.
In the present case, the Letter identified the Company by its registered name, address and registration number, specified the assessment at issue and bore the signature of one of the Company's directors acting in that capacity, thereby satisfying the identification requirement under § 249 AO.
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