Tourism tax remains immediately enforceable – strict standard in preliminary proceedings reaffirmed

Tourism tax assessments can only be successfully challenged by means of interim legal protection under very narrow conditions.

By means ofdecision of5. Januar 2026 (Az. 4 B 28/25)theSchleswig-Holsteinische Verwaltungsgerichthas once again made clear that affected tax debtors can only successfully defend themselves againsttourism tax assessmentsby means ofinterim legal protectiononly under very narrow conditions. Neither allegeddefects in reasoningnor doubts as to thevalidity of the underlying tax ordinanceare sufficient in themselves to ordera stay of execution. The decision fits seamlessly into the well-established case law onthe enforceability of municipal tax claimsand is of considerable importance for advisory practice.

Legal background: public levies between immediate enforcement and legal protection

At the centre of the decision is the tension betweenthe statutory ordered immediate enforcement of public leviesand the constitutionally mandated effective legal protection. According to§ 80 Abs. 2 Satz 1 Nr. 1 VwGOobjections and actions for annulment against thecollection of public levies and costsdo not have a suspensory effect. The legislator assumesan overriding public interest in timely revenue collection, in particular to safeguard municipal financial sovereignty.

Judicial interim legal protection according to§ 80 Abs. 5 VwGOis not excluded in these cases, butis substantially limited. As a rule, the precondition is that the authority has previously rejected an application forsuspension of enforcementor has not decided on it within a reasonable period (§ 80 Abs. 6 VwGO§ 80 Abs. 6 VwGO). In terms of content, the court does not conduct a comprehensive review of lawfulness, but restricts itself to asummary examinationwithin the framework of aweighing of interests.

In doing so, it is decisive whether there areserious doubts as to the lawfulnessof the contested assessment or whether the enforcement constitutes anunreasonable and not justified by overriding public interests hardshipfor the person liable to tax. In particular with regard to municipal tax assessments, case law regularly sets this threshold high.

Additionally, for formal lawfulness, the relevant Land law provisions, in particular those on the requirement to provide reasoning, must be observed, in this case§ 109 Abs. 1 LVwG SHand§ 11 KAG SH. Accordingly, tax assessments must be reasoned, whereby the reasoning must reveal the essential factual and legal considerations, without necessarily setting out all legal details.

Exactly what was at issue: tourism tax for hotel and secondary operations

The applicant operates in a North Frisian municipality ahotel with an adjoining restaurantas well as further commercial units, including leased rooms. On the basis of the respectivetourism tax ordinances of the citythe municipality with assessments of 5. Juni 2025Tourism charges for the years 2021, 2022 and 2023 established. The total claim amounted to approximately 51,800 euros.

Because the applicant had failed to comply with her obligation to submit an annual declaration of the relevant turnover, the authority carried out a calculation of the assessment basis. In the notices, the respective type of business, the assumed turnover figures, the profit and advantage rates and the charge rate were presented in tabular form.

The applicant lodged an objection against all notices and requested suspension of enforcement. She objected in particular to a lack of or insufficient reasoning of the charge notices. After the authority had rejected suspension of enforcement, the applicant applied to the administrative court for the ordering of suspension pending proceedings.

Legal assessment by the court: No serious doubts regarding the statutory provisions or notices

The administrative court dismisses the application as unfounded and initially clarifies that the statutory exclusion of suspension pending proceedings in relation to tax claims sets the standard of review. The court therefore does not examine in the abstract whether the charge notices are lawful, but whether their unlawfulness is obvious or whether overriding private interests require suspension.

The court attaches particular importance to the question of possible statutory defects. It emphasizes that incidental review of municipal tax statutory provisions in interim proceedings only takes place if the statutory defect is so evident that no other decision would be conceivable in the main proceedings. The court does not consider this threshold to have been reached here.

Both the Tourism Charge Ordinance 2021 and the Tourism Charge Ordinance 2022 are effective. Any earlier defects – in particular regarding the determination of the point in time when the tax liability arose – were subsequently cured by amending ordinances with retroactive effect. The retroactive effect is within the scope of permissible indirect retroactive effect, since the tax liability arises only with the end of the calendar year. A legitimate expectation of the tax obligors is therefore not violated.

The court also does not consider the municipal tax law prohibition on less favourable treatment to be violated. The retroactive provisions do not result in a less favourable burden than under the previous statutory provisions.

Formal lawfulness: Tabular reasoning is sufficient

The court expressly addresses the allegation that the notices fixing the tourism charge are formally unlawful for lack of reasoning. It rejects this objection with clear words. A statement of reasons must show why and on what factual basis the authority decided. These requirements are also met by a clear and concise tabular presentation, provided that it discloses the essential calculation parameters.

The court considers it harmless that the notices do not expressly name the specific legal basis – namely the respective Tourism Charge Ordinance. What is decisive is that the legal basis was apparent to the applicant and was in any case properly supplemented in the court proceedings. Any deficiency in reasoning would therefore be immaterial.

Substantive lawfulness and no undue hardship

The court also sees no fundamental concerns from a substantive law perspective. The applicant, as operator of several tourism-related businesses, was fundamentally liable to pay the tax. The estimation of revenues was permissible because the applicant had failed to comply with her cooperation obligations. The amount of the assessed levy was comprehensible and not manifestly defective.

Finally, the court denies the existence of an undue hardship. Neither the amount of the claim nor the economic situation of the applicant provided any indication that immediate enforcement would be unreasonable.

Practical implications: Clear guidelines for enterprises and municipalities

The order demonstrates once again that interim relief against tourism levies regularly fails due to high legal hurdles. Formal arguments – in particular regarding substantiation – only succeed in cases of serious violations. Objections based on by-law provisions can only be enforced in interim proceedings in exceptional cases and as a rule belong to the main proceedings.

For enterprises, it is particularly relevant that failure to cooperate in determining the assessment base significantly weakens the position in the legal dispute. Anyone who fails to submit or belatedly submits revenue declarations must accept estimations and has difficulty successfully challenging these in interim proceedings.

Recommendation: Strategic separation of interim relief and main proceedings

Enterprises faced with tourism levy assessments should have an early review to determine whether an interim application has any prospect of success or whether resources would be better concentrated on a well-founded main claim. The decision clearly shows that unfocussed interim applications regularly remain costly without stopping enforcement.

Recommendation:
Have levy assessments, underlying by-laws and any remedial provisions reviewed in a specialised and strategic manner. Our specialising in public economic law and administrative law law firm AVANTCORE Rechtsanwälte in Stuttgart supports you in the legally sound classification, the development of a robust litigation strategy and the enforcement of your rights – both in main proceedings and when deciding whether to apply for interim relief.