External audit

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In the area of ​​tax law, the field audit is an overall review of tax- relevant issues to be carried out by the tax authorities in the field . The external audit serves to determine, review and assess the circumstances of a taxpayer in order to ensure the uniformity of taxation. Because an extensive tax review - in addition to the tax investigation - represents the strongest interference in the rights of a taxpayer, special requirements and regulations apply to the implementation.

The audits to be carried out by the German customs administration in the field of customs duties and foreign trade are legally equated with external tax audits.

The proper collection and payment of social security contributions is also ensured by external audits.

External audit by the tax office

The tax office , which is also responsible for the assessment of income taxes , is responsible for the field audit, both factually and locally . Most tax offices have therefore set up tax auditors. The people entrusted with the field audit by the tax office are generally called tax auditors . For large companies , corporations and special sectors (e.g. banks, insurance companies or agricultural and forestry operations), the audit services are often combined at a tax office (main audit offices). Some federal states have set up tax offices for large-scale company audits. Assigning the responsibility for tax audits to the regional finance directorates (OFD) or to the finance ministry is not permitted.

Requirements for the field audit

A field audit is not permitted without restrictions. Certain requirements must be met in order for it to be carried out. This applies both to the taxes and tax periods to be checked and to the taxpayer to be checked.

Factual and temporal scope

A field audit can extend to one or more types of tax , one or more tax periods (including those for which the statute of limitations has already occurred) or to specific circumstances. If the examination is limited to wage tax , it is an external wage tax examination ; if it is restricted to sales tax , it is a special sales tax examination ( Section 193 (2) No. 1 AO).

Personal extent

In principle, an external audit can be carried out on every taxpayer. It is permissible for taxpayers who earn income from commercial operations , income from agriculture and forestry or income from self-employed work without any further requirements. In the case of other taxpayers, however, the additional requirements of ( Section 193 (2) AO) must be met.

Therefore, the most important case in practice group of the audit, the audit (short- BP (1 § 193 para. AO)), in which the tax situation of business entities in agriculture, and forestry enterprises and freelancers are checked.

With the amendment of the AO through the Anti-Tax Evasion Act, the legislature expanded the group of taxpayers for whom an external audit is permitted without special requirements, with effect from January 1, 2010 onwards to those who generate excess income of more than € 500,000 per year.

However, an external audit is also permissible according to § 193 (2) No. 2 AO, "if the taxation-relevant circumstances require clarification and an audit at the official office is not appropriate according to the type and scope of the matter to be audited." also possible for a private person.

Examination order

The tax authority determines the scope of the external audit in a written audit order ( § 196 AO) with information on legal remedies ( § 356 AO).

The examination order as well as the expected start of the examination and the name of the examiner are to be announced a reasonable time before the start of the examination if the purpose of the examination is not endangered ( § 197 AO).

The examination order is an administrative act for which the written form is required. He must indicate the competent authority and contain the signature or name reproduction of the head of the authority, his representative or representative (head of department). It should also contain the name of the examiner and the expected start of the exam. It has to be recognizable

  • with which taxpayer the field audit is ordered. The examination order must always clearly state who is liable for the tax, addressee and recipient of the examination order (personal scope).
  • which form of the field audit (wage tax or sales tax special audit, abbreviated field audit or company audit) is to be carried out
  • which tax types are checked (objective scope)
  • which tax periods are checked (temporal scope). No adequate determination of the examination period is z. B. the statement "non-statute-barred years".

Carrying out the exam

At the beginning of the examination, the examiner must identify himself immediately ( § 198 AO).

The auditor has to check the actual and legal circumstances that are decisive for the tax liability and for the assessment of the tax (tax bases) in favor of as well as against the taxpayer ( § 199 AO).

The field audit generally takes place during normal business or working hours in the taxpayer's business premises. The absolute exception should be an examination by a tax advisor. The examiners are authorized to enter and inspect properties and operating rooms.

Since January 1, 2002, the tax authorities have been allowed to check the taxpayer's bookkeeping during the field audit through direct access to his data processing systems. The Federal Ministry of Finance (BMF) has regulated the principles of data access and the verifiability of digital documents (GDPdU). Some of the data are used to check the plausibility of mathematical-statistical tests, such as B. subjected to the chi-square test . In addition, the summary risk assessment is being used more and more to detect manipulations.

Duty to cooperate

The taxpayer must provide information, submit records, books, business papers and other documents for inspection and examination, provide the explanations required to understand the records and support the tax authorities in exercising their powers ( Section 200 AO). If the taxpayer or the persons named by him are unable to provide information, or if the information is insufficient to clarify the matter or if information from the taxpayer does not promise success, the auditor can also request information from other company employees.

Closing meeting

A meeting must be held before the end of the field audit, unless the results of the field audit do not result in any change in the tax bases or the taxpayer waives the meeting ( Section 201 AO). A final discussion is not absolutely necessary for an abbreviated field audit ( § 203 AO). At the final meeting, disputed issues as well as the legal assessment of the audit findings and their tax implications are to be discussed. So-called actual understanding occurs relatively often.

Audit report

A written report is issued on the result of the external audit. In the audit report, the audit findings that are significant for taxation in factual and legal terms as well as the changes in the tax bases are to be presented. The audit report is not an administrative act and therefore cannot be challenged with an objection. If the examination does not reveal any changes to the tax bases, the taxpayer will be notified in writing.

Effects of the external audit

The start of the external audit inhibits the course of the statute of limitations ( Section 171 (4) AO). Notices that have been issued on the basis of an external audit can only be changed with difficulty if new facts or evidence become known ( Section 173 (2) AO). After the external audit, the reservation of the subsequent audit is to be lifted ( Section 164 (3) sentence 3 AO).

Joint cross-border audits

As part of increased international cooperation to prevent international profit shifting by internationally active corporations (base erosion and profit shifting), joint cross-border external audits are being tested within the European Union. A joint cross-border field audit is when a joint team of auditors from two or more countries investigates cross-border incidents as part of a field audit with the aim of a uniform factual and legal assessment.

Decline in tax audits and criticism

According to information from the Federal Ministry of Finance, the number of company audits by tax auditors is declining for people with an income of over 500,000 euros per year. It fell by almost 30% from 1,630 in 2009 to 1,150 in 2018. As early as 2006, the Federal Audit Office had pointed out that the low audit rate led to tax losses averaging 135,000 euros per case.

External audit by the Federal Customs Administration

The field audit and tax supervisory authority (AStA) is responsible for determining the customs legal situation of the taxpayers through auditing and monitoring measures in companies and ensuring compliance with the relevant regulations.

AStA are affiliated to the subject areas D (examination service) of the main customs offices .

Legal bases

The legal bases for the field audit include:

  • Market regulation audits for participants in business transactions with market regulation goods : Section 33 MOG
  • Foreign trade audits for those directly or indirectly participating in foreign trade : Section 23 AWG
  • Audits for market regulation purposes according to § 12 MOG
  • Audits for the collection of data on quantity regulations according to § 8 MOG
  • Audits as part of the supervisory activities of the customs offices in the market regulation sector according to §§ 15 and 16 MOG

Examination orders

The locally responsible OFD is responsible for issuing examination orders , unless an external examination is mandatory, e.g. B. in Regulation (EC) No. 485/2008. The main customs offices can make suggestions to the OFD for issuing examination orders.

If a company to be audited has several offices in Germany, the OFD is responsible for coordinating the audits in whose district the headquarters or management of the company is located. If within a group or a company a certain department or group subsidiary is responsible for handling foreign trade or market regulation processes, the OFD in whose district this department or group subsidiary is located coordinates the external audits.

If the suppliers of one of the parties involved are included in an external audit, the OFD in whose district the party concerned is based coordinates the audits. It is possible for auditors from the other OFDs to take part in each other's audits.
For the issue of an examination order, the fact that there are indications of an infringement before it begins is not detrimental.

The specialist departments of the OFDs arrange the exams in writing. The order must be justified. The type of audit, its legal basis , the audit period (the period of the company's business operations to be audited, e.g. March 2003 to August 2005), any restrictions on the scope of the audit must be noted in the audit order. The examination order is an administrative act and should therefore be given instructions on legal remedies . If auditors from other authorities should also take part in the audit , the company to be audited must be informed in advance, in particular if a member of a body of the European Community wishes to participate in the audit.

If the scope of the examination is to be expanded, a new, expanded examination order must be issued. Otherwise, the examination would take place without an administrative act and thus deprive the party concerned of the possibility of appeal against the examination.

Remedy

Against the arrangement of a market order, the operator may test the appeal of the opposition ( § 34 m MOG i. V. § 348 AO) insert. He has the legal remedy of objection ( § 69 VWGO ) against the order of a foreign trade audit . In contrast to the objection, the objection has suspensive effect. In the event of an objection, the OFD will therefore examine whether it is feasible to order the examination to be carried out immediately. This is especially necessary in cases where there is a risk of blackout .

Duty to cooperate

According to Section 33 (1) MOG and Section 23 (1) AWG, the party involved is obliged to tolerate the examination and to actively participate in the examination. In particular, the auditor must be allowed to enter the business premises and inspect the production and storage rooms as well as all other operating facilities during normal business hours. The person involved must provide information on the matter and make all records and books of the examination period available or make suitable data display devices available. The examiner must be provided with a suitable workplace and the material required for the examination free of charge. If this is not possible, the examination takes place in the office of the examiner.

Interviewing other employees is permissible if the questioning of the person involved or his representatives was unsuccessful or unsuccessful.

The examiner must immediately report a refusal to participate in the examination to the responsible OFD. This can then Verwaltungs forced measures cause that to Erzwingungshaft can range.

The obligation to participate in the examination can be restricted by the right to refuse to give evidence . If the examination reveals indications of a criminal offense or an administrative offense , the examiner must report this to the OFD immediately. If the person involved refuses to take part in the investigation, the case must be handed over to the responsible customs investigation office. The auditor can be assigned to the customs investigation service as technical assistance.

If the participant himself is interested in clarifying a fine and therefore declares that he is ready to cooperate with the examiner, the examiner can also be commissioned to investigate the fines.

The competent authority can also instruct the auditor to continue the audit in the event that an administrative offense is found if the party involved has been notified of the initiation of administrative fine proceedings against him. The parties involved must be informed separately about their rights and obligations in the fine proceedings.

Closing meeting

The examiner has to hold a final discussion with the participant about the result of the examination. This should inform those involved about the test result and give them the opportunity to comment on any complaints. The participant must be given a reasonable time in advance of the date for the final meeting so that they can prepare for it. If there are no complaints or if the participant does not attend the final meeting, this can be omitted.

The auditor should explain the results of the audit to the parties involved and show the parties involved the possible consequences of the audit results in terms of reimbursement or tax law. These notes are not binding. The examiner does not have to explain any legal penalties. The reference to the possible initiation of criminal or fine proceedings, however, should be made. In difficult cases a representative of the OFD should be consulted.

Audit report

The auditor must write a report on the results of the audit and, in special cases, forward it to the OFD. As a rule, it is only sent to the taxpayer or his or her authorized recipient (e.g. tax advisor).

In particular, the report should contain all information on the company audited and all findings of the audit. Assessments of the facts with regard to penal measures by the auditor are to be omitted in the audit report. Any legal appraisals of the facts presented in the audit report are only to be submitted subject to the final decision by the OFD specialist department.

Since the audit report is also sent to the party involved, all internal comments are to be omitted.

In special cases, the audit report must not only be sent to the person involved, but also to other authorities involved in the procedure, such as the Federal Office for Agricultural Market Organization , the Federal Office for Economics and Export Control , the responsible branch of the Deutsche Bundesbank, etc. The body that ordered the test is responsible for sending the test report to the parties involved and other authorities involved. The OFD must report particularly important or possibly relevant examination results under European law to the BMF .

External audit of social security

In the area of compulsory insurance , the correct calculation and payment of social security contributions is also checked by way of the external audit, Section 28p SGB ​​IV .

While the examination was previously the responsibility of the health insurances as collection points , it was transferred to the pension insurance.

See also

Individual evidence

  1. ↑ Die Welt : Tax auditors come without warning , from June 9, 2002, loaded on April 16, 2018
  2. ↑ 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)
  3. ↑ Bookkeeping: abnormalities in the chi-square test alone are no cause for complaint
  4. ↑ Till Meickmann Problems of procedural law in the taxation of cross-border issues - joint tax audits as a solution model , in: Internationales Steuerrecht 2014, p. 593 , ISSN  0942-6744
  5. ↑ a b Income millionaires are rarely screened by the tax office. Retrieved February 28, 2020 .
  6. ↑ Federal Government: Answer of the Federal Government to Small Inquiry - Printed matter 19/13748 . Ed .: German Bundestag. Berlin October 4, 2019 ( bundestag.de [PDF]).

literature

  • Andreas Beckmann, Ulf Recktenwald: Help, the examiner is coming! Practitioner's manual for thorough preparation and competent handling of an external audit in the customs area . Bundesanzeiger-Verlag, ISBN 3898175200 .
  • Markus Flamm: The digital tax audit is coming . DATEV book series, order number 36212.
  • Markus Flamm: Tax auditor with X-ray vision - everything the bookkeeping reveals . DATEV book series, order number 36068.
  • Elmar Goldstein: Haufe-Lexware tax audit , ISBN 978-3-448-09293-6 .
  • Bernd Hentschel (Ed.): Digital tax audit - eData access of the financial administration . 2nd revised edition. Datakontext, Frechen 2004, ISBN 3-89577-325-5 .
  • Papperitz / Keller: ABC auditing , manual, Stollfuß Medien GmbH & Co. KG, ISBN 978-3-08-350100-8 .
  • Hans Roggenkamp: Practical handbook on wage tax law - Group 5 The external wage tax audit . Luchterhand publishing house.
  • Michael Streck: The external audit , 2nd edition 1993, Verlag Dr. Otto Schmidt, ISBN 3-50462-311-X .
  • Herbert Wenzig: External audit / company audit (= Green series . Volume 12). 9th edition. Erich Fleischer Verlag, 2004, ISBN 3-8168-1129-9 .

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