The assistance is the assistance of an authority to any other authority. The authority requesting administrative assistance is called the requesting authority . The authority that is supposed to provide administrative assistance is referred to as the requested authority . Administrative assistance among judicial authorities is called mutual legal assistance .
Administrative assistance in Germany
In Germany , the principle of general administrative and legal assistance applies and is laid down in 35.1 of the Basic Law: "All federal and state authorities provide each other mutual legal and administrative assistance." In paragraphs 2 and 3, special forms of administrative assistance are specified in the event of a natural disaster, a "particularly serious accident" or an internal emergency . Detailed regulations can be found in various laws, including VwVfG, of Book 10 of the Social Code (SGB X) and the tax code . A sub-case of administrative assistance is z. B. the enforcement aid .
Administrative assistance is generally provided free of charge and free of charge, but expenses are subject to certain conditions, regulated e.g. B. in Administrative Procedure Act (VwVfG). The requested authority can refuse administrative assistance in certain cases, for example if it could only provide assistance with a disproportionate amount of effort. The requested authority may not provide administrative assistance if this would violate a law , e.g. data protection regulations.
There is also no administrative assistance if authorities provide assistance within an existing instruction relationship, i.e. if a lower authority supports its superordinate authority. If the assistance consists of actions that are the responsibility of the requested authority as a separate task anyway, there is also no case of administrative assistance.
Administrative assistance from the Bundeswehr
The administrative assistance provided by the Bundeswehr is the constitutionally permissible support measures for the armed forces within the scope of administrative assistance under Article 35 (1) of the Basic Law and basically comprises: the provision of properties including the provision of police forces (basic decree on the shared use of Bundeswehr properties by third parties - in the currently valid version (BMVg WV III 3 - Az. 45-04-01 / 00 of February 27, 2007)), provision of equipment not directly used for military combat purposes, including transport, fire-fighting and medical equipment and medical supplies, use by members of the Armed forces as personnel to operate equipment, provided that this use does not achieve the quality of an operation (technical administrative assistance). Further details are also regulated in Sections 4-8 of the Administrative Procedure Act (VwVfG).
Deployments of the Federal Armed Forces in Germany in the context of a state of defense and tension as well as an internal emergency with the use of sovereign powers do not constitute administrative assistance, but are regulated by the relevant articles of the Basic Law ( in conjunction with Art. 115 a and b and Art. 91 para . 2 GG.) Regulated.
International administrative assistance
In the course of the globalization of economic relations - both in international trade and also among private individuals - there are various cross-border circumstances that can no longer be grasped by the means of purely national law. The administration has ex officio the task of clearing up facts. The assignment does not end at the state border. But it comes up against the territorial limits of national state power, which is limited to the territory of the Federal Republic of Germany. The exercise of sovereign powers on foreign territory is not permitted according to the generally recognized rules of international law without the permission of the foreign state (principle of territoriality ). The divergence of the territorial scope of legal norms on the one hand and territorial sovereignty on the other results in the necessity and justification of international administrative assistance.
Regulations in Germany for international cooperation in tax matters
International and intergovernmental cooperation in tax matters is of particular practical importance. The national findings, means and powers are not sufficient according to experience, so that the tax authorities can fulfill the mission of the regularity and legality of taxation. Therefore a number of international forms of cooperation have emerged. The following are to be mentioned:
- Help with delivery abroad ( VwZG );
- Help with the enforcement of tax claims and others (international agreements, EU law on collection);
- Exchange of information when determining tax bases, so-called international administrative assistance (international legal agreement, EU legal acts, EC Administrative Assistance Act (EGAHiG)).
In this context, efforts to initiate Germany and France to take decisive action against tax havens in recent times as a result of the Liechtenstein tax affair are to be seen. At an OECD conference in Paris on October 21, 2008, the representatives of 17 member states discussed measures against “tax havens”. The participants discussed which measures can be taken against states and territories that are not prepared to cooperate with other states on the basis of the standard developed by the OECD in the area of taxation and thus promote their financial centers at the expense of the tax revenue of other states. The participants called on the OECD to revise the “black list” of global tax havens by mid-2009. There are around fifty tax havens around the world, in which more than 400 banks, two-thirds of the 2,000 hedge funds and around two million letterbox companies are based and EUR 7.3 trillion in funds are managed past all controls. According to the OECD, these include the Netherlands Antilles, the British Channel Islands Guernsey and Jersey as well as Belize , Panama and the Seychelles . According to the organization, three countries refused to cooperate: Andorra , Liechtenstein and Monaco . In the aftermath of the conference, the 20 leading industrialized countries (G20) increased the pressure on “tax havens” to such an extent that in the course of 2009 almost all of them gave in and agreed to cooperate according to OECD standards.
Against this background, on January 19, 2009, the German Federal Government presented its first ministerial draft for a “Law to Combat Harmful Tax Practices and Tax Evasion”, which resulted in the Act to Combat Tax Evasion (Anti-Tax Evasion Act) passed on July 29, 2009.
The aim of the law is to make cross-border tax evasion much more difficult in the future. The regulations relate primarily to so-called tax havens, i.e. countries that do not recognize the standards of the OECD . According to the law, the German tax authorities are given additional powers. Citizens who have business relationships in uncooperative countries are obliged to cooperate with the German tax authorities and provide them with comprehensive information. If this does not happen, sanctions will apply.
The tax authorities can use intergovernmental administrative assistance both to prosecute a tax offense or tax offense and to ensure legal taxation. This applies to both assistance from foreign tax authorities and assistance to foreign tax authorities. The distinction between administrative and legal assistance in AO has no factual effect. This regulation relates exclusively to administrative assistance for taxation purposes.
Administrative assistance in tax matters in the European Union
Administrative assistance takes place primarily between the member states of the European Union .
The member states of the European Union provided each other with administrative assistance according to the EC Administrative Assistance Directive. Administrative assistance under the directive included assistance in setting taxes on income, earnings and property (direct taxes) and in setting and collecting taxes on insurance premiums.
Directive 92/12 / EEC changed the previous EC administrative assistance directive in such a way that its provisions were extended to the area of excise duties, which was reversed again with Directive 2004/106 / EC. The provisions on administrative cooperation in the field of excise duties have been brought together in the Council's EU Indirect Tax Cooperation Regulation.
Based on the knowledge that the measures provided for in the EC Administrative Assistance Directive 77/799 / EC were no longer suitable for ensuring efficient cooperation between the member states, the Council of the EU has implemented a contemporary amendment with Directive 2011/16 / EU of 15 February 2011 want to create, which builds on the previous directive. This provides for a greater scope for the exchange of information as well as more direct contacts between the administrative departments in order to make cooperation more efficient and accelerate it. The German legislator has followed suit and put theinto force with effect from January 1, 2013 .
Insofar as the German tax authorities provide the competent authorities of the other member states with information by means of administrative assistance that is of importance for tax assessment in this state, e.g. B. in the case of employees who do not work in their country of residence, this has so far been done in accordance with the German EC Administrative Assistance Act (EGAHiG). Above all, this should facilitate the coordination of investigators in cross-border tax fraud and the work of the tax authorities in tax matters with a foreign element.
Intergovernmental administrative assistance with tax enforcement
The enforcement of German tax claims abroad and the enforcement of foreign tax claims in Germany is possible within the EU due to the EU Collection Directive, which implements the EU Collection Act (EUBeitrG) in national federal law.
Intergovernmental cooperation on VAT
In accordance with the EU Cooperation Regulation, the domestic tax authorities can and must work together with other EU states in the field of indirect taxes in special forms in order to ensure indirect taxation ( consumption taxes , value added tax ) after the abolition of tax controls at the internal borders of the EU . For administrative assistance in the field of value added tax, there is the Council Regulation (EC) No. 1798/2003 of 7 October 2003 on administrative cooperation in the field of value added tax.
Regulations for special boundary lines
On the German-Belgian border there are several places where a German road often runs through Belgium for a short distance within a town , keyword Vennbahn and Bundesstraße 258 . As part of an agreement, German officials are allowed to secure an accident site, for example, but the Belgian police always have to move from Eupen, several kilometers away in the Belgian heartland.
- Report of the European Commission on "Mutual Administrative Assistance".
- Film "Ynsider: What is administrative assistance?" on the Bundeswehr website
- Law to Combat Tax Evasion - Tax Evasion Combat Law, BT-Drs. 16/12852 and 16/13106, decided by the German Bundestag in its 231st session on July 3, 2009 (plenary minutes 16/231)
- Obenhaus, The Importance of the Tax Act for Practice , in: Die Steuerberatung 2009, p. 389,
- Cooperation in the surveillance and fight against tax fraud in the European Union . Ec.europa.eu. April 30, 2010. Retrieved June 20, 2010.
- EC Administrative Assistance Directive of December 19, 1977 (77/799 / EEC) on mutual administrative assistance between the competent authorities of the member states in the area of direct and indirect taxes in the version of the Council of November 16, 2004 amending Directive 77/799 / EEC on mutual administrative assistance between the competent authorities of the Member States in the field of direct taxes, certain excise duties and taxes on insurance premiums and Directive 92/12 / EEC on the general system, ownership and transport and the control of excise goods
- OJ. L 76 of 23 March 1992, p. 36
- Directive 2004/106 / EC of the Council of November 16, 2004 amending Directive 77/799 / EEC on mutual administrative assistance between the competent authorities of the Member States in the field of direct taxes, certain consumption taxes and taxes on insurance premiums as well as Directive 92 / 12 / EEC on the general system, possession, transport and control of goods subject to excise duty, OJ. L 359 of December 4, 2004, pp. 30-31
- Regulation (EC) No. 1798/2003 on administrative cooperation in the field of VAT for the purpose of combating tax fraud in intra-Community transactions, OJ. EG 2003 No. L 264 p. 1
- Directive 2008/55 / EC of the Council of May 26, 2008 on mutual assistance in the recovery of claims in relation to certain charges, duties, taxes and other measures (codified version) (OJ EU No. L 150 p. 28 )
- Law for the implementation of the EC Collection Directive (EC Collection Act - EG-BeitrG) of August 10, 1979 ( Federal Law Gazette I p. 1429 ), revised by notice of May 3, 2003 ( Federal Law Gazette I p. 319 , Federal Law Gazette. I p. 654 ), last amended by Art. 6 G of December 13, 2007 ( BGBl. I p. 2897 )
- , until January 1, 2012 the