Accounting law (Germany)
The aim of accounting law is to harmonize accounting, which means that companies from a wide variety of economic sectors have to prepare a uniform balance sheet and profit and loss account . This helps protect creditors , enables company comparisons and facilitates balance sheet analysis . It ensures that the same business transactions are assigned to the same balance sheet item in different companies , that uniform valuation rules apply to assets and liabilities , that the accruals and accruals are standardized on balance sheet dates and that profit is determined uniformly .
Legal norms and case law
Partly unwritten rules contain the generally accepted accounting principles , the unwritten part of customary law can be. Statutory regulations and laws are the Commercial Code ( ), share law (§ ff. AktG ) or publicity law , tax law in particular, the income tax law . In addition, accounting standards such as those of the German Accounting Standards Committee (DRSC) and the International Financial Reporting Standards (IFRS) issued by the International Accounting Standards Board must be observed . The case law of the Federal Court of Justice (BGH) and Federal Finance Court (BFH) are also possible sources of law .
The General German Commercial Code (ADHGB), which came into force in May 1861, contained the first accounting regulations . The accounting obligation arose from Art. 28 ADHGB, individual balance sheet items were already mentioned in Art. 29 ADHGB, the obligation to sign the balance sheet by the merchant stipulated Art. 30 ADHGB. Since the variety of individual issues could not be regulated in detail by these commercial law provisions, the legislature first introduced the indefinite legal term "principles of proper accounting" (GoB) into the reformed HGB in May 1897 . The GoB were often cited there; according to § 38 paragraph 1 HGB a. F. the merchant had to make his commercial transactions and the position of his assets evident in the books according to the GoB. Even today's HGB does not dispense with the inclusion of the GoB (§ Paragraph 1 HGB, Paragraph 1 HGB). Due to the principle of relevance , there was a link between tax and commercial law , it first appeared in the Income Tax Act (EStG) of March 1920 in Section 33 (2) EStG a. F. The EStG in the version of August 1925 wrote in § 13 EStG a. F. expressly a determination of profits according to GoB. The first German stock corporation law of October 1937 brought special regulations for AG and KGaA. The Reichsfinanzhof (RFH) emphasized in March 1938 that no stricter rules could apply to the sole trader and the general partnership "than those laid down by the law of the AG, which particularly safeguards the protection of creditors".
The accounting law, which was previously scattered in numerous individual laws, was summarized by the BiRiLiG in December 1985. It also transformed the 4th, 7th and 8th EC Directives and thus comprehensively reformed the accounting law of the HGB, which has been in force since January 1900. In fact, this resulted in an accounting law for all companies. The main concern was uniform accounting law from sole traders to multinational corporations . In May 2009 the Accounting Law Modernization Act (BilMoG) came into force. On the one hand, this was intended to strengthen the information function of the annual financial statements and, on the other hand, medium-sized companies in particular should be provided with a simpler and more cost-effective alternative to IFRS . With the Accounting Directive Implementation Act , the requirements of EU Directive 2013/34 / EU came into force in German law in July 2015 . In particular, it brought about a greater systematization of the accounting, especially the annex reporting . In addition, the size criteria under commercial law were adjusted, the implementation of which the national legislature decided to use the maximum limits (§ ff. HGB).
Scope of regulation
The provisions of the HGB on accounting law only apply to merchants . Ordinary associations , freelancers , real estate companies or public companies are not subject to them; the latter are based on accounting law without any legal obligation. For all non-traders, only the tax bookkeeping and accounting regulations apply ( AO , , EStG ). As a rule, they are not obliged to draw up a balance sheet.
The third book of the HGB is divided into six sections:
- Regulations for all merchants
- Supplementary regulations for corporations and certain partnerships
- Supplementary regulations for registered cooperatives
- Supplementary regulations for companies in certain sectors of the economy ( credit institutions , financial services institutions , insurance companies and pension funds )
- Private accounting body , accounting advisory board
- Audit office for accounting
The first section regulates the bookkeeping and the content of the annual financial statements , whereby the form of the annual financial statements is at the discretion of the businessman. Stricter formal requirements are only applied to companies that do not have a natural person as a liable partner - especially to protect the creditors (Section 2). The structure of the individual balance sheet items is standardized for the annual financial statements of these companies, so that the annual financial statements are easier to understand for an outside observer. Depending on the size class , the individual items are to be broken down more or less.
The annual financial statements of medium-sized and large companies are subject to an annual audit in which compliance with the provisions of accounting law is checked. In the case of group companies , the individual financial statements are to be consolidated into consolidated financial statements . The financial statements are to be disclosed so that anyone interested can inspect them. A separate law, the Publicity Act, regulates the disclosure obligation of companies that, due to their extraordinary size, have to disclose their annual financial statements despite a natural person as the liable object.
German accounting law is also based on the protection of creditors as the overriding principle with regard to the prescribed content of the balance sheet . The principle of prudence from Paragraph 1, No. 4 of the HGB and its characteristics, namely the realization principle , the lowest value principle , the imparity principle and the principle of revaluation run through the entire first section of the third book of the HGB. In contrast, other accounting regulations, such as those in the Anglo-Saxon region, endeavor to reflect the estimated current value of the company as precisely as possible in the balance sheet.
Liberating effect of IFRS consolidated financial statements
Companies whose equity or debt instruments are traded on regulated securities markets (so-called capital market-oriented companies ) have had to prepare their consolidated financial statements in accordance with International Financial Reporting Standards since 2005 . The preparation and disclosure of the HGB consolidated financial statements is then no longer necessary (see HGB). The accounting regulations of the HGB are thus suspended for such financial statements.
Partnerships and corporations
The separation of partnerships and corporations under commercial law is characteristic of German accounting law . While the legal forms with unlimited liability ( open trading company (OHG), general partners of the limited partnership , sole trader ) have less strict regulations with regard to equity , corporations ( stock corporation , limited partnership on shares , company with limited liability or cooperative ) have detailed equity and Distribution Norms . The reason is that, according to the separation principle in German company law, only the company's assets are liable to the creditors for the liabilities of a corporation , but not the private assets of its shareholders as is the case with partnerships. As a result, the legislature in corporations dealt extensively with the distinction between equity and debt.
An approximation of German accounting law to international (Anglo-Saxon) accounting standards, specifically the IFRS, has been observed for a long time. For the future it is intended to standardize the accounting regulations at European and international level in order to take globalization , especially the internationalization of the capital markets, into account. In the longer term, this could bring German trade accounting law closer to international standards or at some point be completely replaced by IFRS.
In this respect, the still existing relevance of the commercial balance sheet for the tax balance sheet is problematic.
- Falterbaum, Bolk, Reiß, Kirchner: Bookkeeping and Balance Sheet , Green Series, 21st Edition, Achim 2010, ISBN 978-3-8168-1101-5
- Großfeld, Luttermann: Accounting law , 4th edition, Heidelberg 2005, ISBN 3-8114-2348-7
- Luttermann: The accounting law of the stock corporation, in Munich commentary on the AktG , 2nd edition, ISBN 3-406-45305-8
- Thiel / Lüdtke-Handjery: Accounting law , 5th edition, Heidelberg 2005, ISBN 3-8114-7309-3
- Wiedemann / Fleischer: Commercial law including accounting law , (PdW series), 8th edition, Munich 2004, ISBN 978-3-406-52070-9
- Lüdicke: Corporate Tax Law, Beck Juristischer Verlag Munich 2008, ISBN 978-3-406-57406-1
- Kathrin Aigner: The new accounting law according to HGB , 1st edition, 2009, LexisNexis publishing house, ISBN 978-3-89655-465-9
- Heinz Paulick, Textbook of General Tax Law , 1977, marginal note 247
- General German Commercial Code and General German Exchange Order , 1866, p. 20
- RFH, judgment of March 14, 1938, RStBl. 1938, 626
- Carsten P. Claussen, Accounting Directive Act , 1986, p. 146