Retention obligation
The retention obligation is understood to mean the legal obligation to keep certain business documents for completed business transactions for commercial or tax law purposes in an orderly manner so that they can be accessed when required. The legal basis for Germany can be found in § 257 HGB , § 147 AO and § 14b UStG . In addition, there are industry or application-specific retention requirements for documents in public administration , pharmaceutical research , food and pharmaceutical production , hospitals , quality assurance , environmental protection , telecommunications , energy generation , construction , etc.
Holders
Everyone who is obliged to keep accounts is subject to the commercial and tax law retention obligations , in particular merchants within the meaning of the Commercial Code. The obligation does not expire if the trade no longer exists, and it cannot be transferred to a successor. Even those who have sold or given up their business must keep the documents from the time of their business activity themselves. Federal or state special laws oblige the public administration to keep their files .
Retention Reasons
If documents are kept, they can be accessed if necessary. Most often, companies have to resort to documents relating to concluded transactions for a tax audit . In the case of production companies, the warranty obligation in the context of product liability may make it necessary to use old business documents. If a material defect appears within six months of the transfer of risk , it is legally (rebuttable) presumed that the item was defective at the time of transfer of risk ( Section 476 BGB). Then the seller must be able to prove from archived documents that this was not the case. Within the current statute of limitations , third parties can still make legally effective claims of any kind against the company that is obliged to keep records, against which evidence can only be taken if the documents are available. In addition, in the event of a legal dispute , courts can, upon application or ex officio, order the submission of a party's trading books ( Section 258 (1) HGB). This also applies to property disputes, in particular in inheritance, community property and company division matters ( Section 260 HGB).
Documents to be retained
The following documents must be kept:
- All trading books and records that must also be kept for tax purposes. This does not include voluntary records such as order and order books.
- Physical inventory documents. According to commercial law, this includes the inventory . According to tax law, inventory records ( original receipts ) may also have to be retained .
- All documents of the annual financial statements , i.e. balance sheet (including opening, interim and other special balance sheets), profit and loss account , appendix and, if applicable, the management report
- All work instructions and organizational documents that are necessary to understand the bookkeeping. These are, for example, charts of accounts , lists of abbreviations and program and procedural documentation of the IT system.
- Commercial and business letters in every form (letters as well as faxes and e-mails ), both sent and received correspondence with external business partners, but not internal e-mails or other internal messages ( see also: e-mail archiving ).
- All types of accounting documents , i.e. all documents relating to business transactions . Not only internal booking instructions are meant here, but also tax bills, account statements, cash books, invoices, receipts, checks, bills of exchange and payment instructions.
- Other documents that are important for taxation, for example warning letters, extracts from the commercial register or receipts.
Storage form
The documents must be kept in an orderly manner. All forms of storage must comply with the principles of proper accounting . For material held electronically, the principles of proper IT-supported accounting systems and the principles of data access and the verifiability of digital documents must be observed.
Storage in the original is only required in exceptional cases. Only opening balance sheets, annual financial statements and consolidated financial statements need to be kept in the original, even if they are recorded on microfilm or other data carriers ( electronic archiving ) (Section 257 (3) sentence 1 HGB, Section 147 (2) sentence 1 AO). The storage of all other documents is made easier. They can also be kept as a reproduction on an image carrier or another data carrier if this complies with the principles of proper accounting. It must be ensured that the reproduction or the data agree visually and in terms of content if they are made legible. In addition, the documents must be available at all times during the retention period, made legible immediately and capable of being evaluated by machine (Section 147 (2) AO). Special regulations apply to certain customs documents. If the documents are properly stored on image or data carriers, the paper documents can be destroyed. However, this does not apply to original documents that have to be kept in the original according to other legal provisions, such as according to Section 62 (2) UStDV "Documentary evidence in the input tax refund procedure". They must not be destroyed.
However, even if there is no storage obligation, the destruction of originals can result in legal disadvantages in other areas for the entrepreneur. Examples of this are guarantees , promises of debt , wills and notarial deeds.
Data and documents that were originally created electronically must be kept in electronic form so that they can be evaluated by machine. A printout with subsequent deletion of the data is not permitted.
Storage obligation for private individuals
Private individuals (including entrepreneurs who use services in their private sphere) who have received an invoice from entrepreneurs for services in connection with real estate are obliged to keep this invoice for two years on the basis of Section 14b (1) sentence 5 UStG . In the event of a violation, a fine of up to € 500 can be imposed. This retention obligation (of the private person) must be indicated in the invoice, for example by adding “The invoice recipient is obliged to keep the invoice for 2 years for tax purposes.” A five-year period applies to tradesmen's invoices for new construction, renovation or repair of a building Limitation period in the event of defects; the associated invoices are to be kept for the assertion of claims.
Income tax records and documents (e.g. receipts) are to be kept by private individuals for six years if the sum of positive surplus income (e.g. employee income, renting and leasing, capital assets) is more than EUR 500,000 per year Section 147a AO.
Legal consequences
Violations of the retention obligation lead to the same legal consequences under tax law as violations of the accounting and recording obligations. Missing documents can mean that the correctness of the bookkeeping is no longer given. As a result, the tax authorities may estimate the tax bases. Punishable makes, who, concealing account books or other documents for storing them he is obliged under commercial law, aside creates before the statutory retention periods, destroyed or damaged, making it difficult track of his financial status ( § 283b para 1 no. 2. Penal Code ; Violation of the accounting obligation). Document suppression ( Section 274 of the Criminal Code) and tax evasion ( Section 370 AO) can also be considered as possible criminal offenses .
If the retention period has expired, the documents that are required to be retained are destroyed so that they can no longer be accessed. If there are still legal disputes afterwards, the expiry of the commercial retention period does not in itself justify a reversal of the burden of proof . In the cited case had savers deposit the money bank , however, to prove the payment, even if the retention period had expired. The OLG Celle had also decided in the case of a savings account after the retention period had expired. Therefore, companies that lawfully destroy their documents after the retention period has expired can find themselves in need of evidence. In many cases, however, there should be defenses of limitation and forfeiture .
Retention periods in Germany
The retention periods are regulated in Section 257 of the German Commercial Code (HGB), Paragraph 4 of the Commercial Code , Section 147 of the Tax Code and Section 14b of the Sales Tax Act.
- 10 years: books, incoming and outgoing invoices, accounting documents, inventories, balance sheets, management reports
- 6 years: commercial letters (excluding incoming and outgoing invoices), business letters, e-mails and other digital documents
- 2 years: invoices from entrepreneurs for property-related services by the service recipients
See also
literature
- Ingeborg Haas: Retention obligations and periods. 1st edition. Verlag Haufe-Lexware, 2012, ISBN 978-3-648-02557-4 .
- Joachim Schrey: Obligation to keep business documents. In: Wolfgang L. Brunner et al. (Ed.): Companies sink into data garbage. Düsseldorf 2011, ISBN 978-3-939707-63-9 , pp. 141-176.
Web links
- ABC of retention periods (tax law and commercial law). In: buchhaltung-lernen.de.
Individual evidence
- ↑ Early cleaning: These documents must never be in the shredder. Welt online, March 10, 2014, accessed June 2, 2015 .
- ↑ BGH, judgment of June 4, 2002, Az .: XI ZR 361/01 = NJW 2002, 2207 = BGHZ 151, 47, 51
- ↑ OLG Celle, judgment of June 18, 2008, Az .: 3 U 39/08
