Representative liability

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Liability of the representative means in German tax law the tax liability of the legal representative , asset manager or authorized person . It is regulated in § 69  AO .

General

The legal representatives of legal and natural persons are liable for tax debts of the persons they represent if they culpably breach their tax obligations (Section 69 of the Tax Code (AO)). If the criteria for a liability standard are met, the company has an additional, independent liability claim against the representative in addition to the company's tax liability. It is always directed against a person who is not liable for tax. The liability claim is dependent in its existence on the tax claim, i.e. ancillary. Liability debtors and tax debtors are joint and several debtors (Section 44 (1) AO).

requirements

The offense of § 69 AO has five characteristics:

  1. The addressees of the legal norm are the legal representatives of natural and legal persons (§§ 34 f. AO). This is a reference to civil law.
  2. The act that triggers liability is described as a breach of tax obligations. This creates a universal reference to all tax law matters.
  3. Damage must have occurred, which can consist in the fact that claims from the tax liability relationship are not established or fulfilled in a timely manner, or that tax rebates or refunds are paid for no legal reason.
  4. There must be a causal connection between action and damage.
  5. The norm requires gross negligence or willful misconduct as a form of fault.

Legal representatives and asset managers

According to §§ 34, 35 AO, the legal representatives, asset managers and those entitled to dispose of the taxpayer are liable. In law and in practice, the managing director comes first as the legal representative of the GmbH . He is potentially liable for liability solely through his nominal appointment to the body of the company. It is irrelevant whether it is entered in the commercial register. It is also not necessary that he exercises or can exercise the office (e.g. straw man managing director). The managing director can only establish liability debts during the liability period, i.e. no longer when he leaves office.

Director of the English limited company and the entrepreneurial company

If the Limited fails to pay its tax debt, the Director is liable as its legal representative. This is relevant because of the limited's lack of capital. Today this is also relevant for the UG .

The legal concept of asset manager has two elements : Asset manager is someone who acts externally and can also act externally - not necessarily allowed.

It is not necessary for the person entitled to dispose of the tax to appear before the tax authorities . Anyone who determines business policy or only conducts business internally does not become an asset manager. Typically, the term includes who concludes contracts, hires staff, leads legal disputes, etc. For example, authorized signatories are regularly authorized to dispose, insofar as they appear externally. Internal restrictions on authority are irrelevant.

Breach of duty

In addition to fault, the breach of duty is the central topos of tax liability. In order to understand the liability problem, it is necessary to make it clear in advance that the breach of duty to which Section 69 AO is based represents a breach of public law obligations on the part of the managing director himself. On the one hand, the managing director has his duties as an employee and body to the GmbH; these are of a civil nature. Your violation does not have any (tax) liability consequences. On the other hand, he has obligations under public law towards the taxpayer. The duties of the managing director begin when he takes office and end when he leaves office or a prohibition of disposal after bankruptcy has been opened.

The content of the tax obligations

The content of the duties of the managing director results from the tax laws, in particular from § 34 Abs. 1 S. 1 AO. The legal representative of a legal person has to fulfill their tax obligations. This makes the obligations all-encompassing, because the standard does not impose any restrictions. The violation of any tax duty can therefore trigger liability, provided that it has only become causal for damage to the taxpayer. When fulfilling obligations, the legal representative must exercise the care of a prudent businessman (Section 43 (1) GmbHG) if he does not want to be guilty of any breach of duty. In terms of liability law, the obligation to ensure the payment of taxes from the managed funds is particularly relevant (Section 34 (1) AO). However, this does not mean that tax obligations exist only at the tax due dates. The obligations are far ahead of this. First of all, it is part of the diligence of a prudent businessman, if necessary, to acquire the necessary knowledge. He has to declare and register taxes. He has to fulfill the accounting obligations. He has to carefully select and monitor persons entrusted with tax tasks. He must manage the company's funds in such a way that repayment is guaranteed when they become due. He must not satisfy creditors in advance, with the result that the treasury goes empty-handed. In particular, he is liable if he loots the company and then leaves office before the taxes are due. Of course, he also has to pay tax debts that he finds when he takes office. He must not negligently render himself unable to pay taxes due in the future. Contracts are to be drafted in such a way that there are no taxes that cannot be paid.

Principle of proportional liability

The duties of the managing director regularly find a de facto limit in the funds available to the GmbH. Because he has to settle the tax debts from the funds he administers (Section 69 (1) AO). The taxpayer cannot claim to be better off than other creditors. From this follows the principle of proportional satisfaction: If the managing director uses the proportion of the free funds on the tax liabilities that corresponds to the proportion of the tax claims in the total debt of the company (liability ratio), he has fulfilled his duties.

Exceptionally full liability

Full liability intervenes if the tax debts would have been repaid in full if they had acted in accordance with their duties. Then not only the proportional liability applies, but the liability in the amount of the total tax liability. It can arise from the thwarting of enforcement options if the FA z. B. with correctly declared or timely submitted advance notifications could have successfully offset or enforced.

Full liability for income tax applies without restriction. The wage tax to be paid is part of the wages and is owed by the employee. According to the BFH, it follows from this that it is a matter of third-party funds that the employer only collects in trust. He must not use them up for society. If society lacks the means for wage tax, then he has to cut wages accordingly. There is therefore practically always a breach of duty if wage tax has not been paid. It should also not be possible to offset over-fulfilled quotas from other types of tax on wage tax.

Liability damage

The liability damage can acc. Section 69 AO consists in the fact that claims arising from the tax obligation are not or not in time determined or fulfilled, or that tax payments or refunds are paid for no legal reason. So the damage cannot be greater than the tax liability. Liability claims and tax claims are ancillary. The tax only has to be incurred, not determined by a tax assessment. If the tax claim is statute-barred as the main claim, no liability notice can be issued (Section 191 (5) AO). The liability claim is subject to Section 191 (3) AO has its own statute of limitations . The limitation period for payment of the liability debt follows the general rules of §§ 228 ff. AO. In liability proceedings, the managing director cannot invoke the allegedly too high tax liability if it has been definitively established by tax assessment and he could have legally objected to it in his own name, cf. Section 166 AO.

fault

Standard of fault

§ 69 AO demands intent or at least gross negligence. There is intent when the managing director knows about his tax obligations and deliberately violates them. “The measure of the duties of a managing director is the diligence of a prudent businessman, regardless of the person of the respective managing director. Only in the attribution of fault in the event of a breach of these obligations can subjective aspects be of importance. ”The managing director is therefore in the following situation: He has the duty to acquire the knowledge necessary for managing the company. If he fails to do this - for whatever reason - he is acting with gross negligence. The fault can also lie in the fact that the managing director failed to ensure that the company was properly organized so that third parties could violate tax obligations. The fault can also lie in not having obtained support from a tax advisor.

In detail, the following aspects cannot excuse a breach of duty by the managing director:

  • Shareholders control and incapacitate him
  • He is satisfying other creditors because his bank verbally promised credit.
  • He puts the tax office at a disadvantage in order to save the company.
  • A global assignment leaves him no freedom to make his own decisions.
  • As managing director, he is just a straw man and can neither run the business nor does he have access to business documents or business accounts.
  • He is ousted by other managing directors.
  • The bank selects which obligations are to be fulfilled.
  • He did not know about the principle of proportional repayment.
  • He was just getting started and didn't have an overview of the business
  • The managing director always has the option of legal alternative behavior: He can resign from his position (BFH of September 17, 1987 - VII R 101/84, BFH / NV 1988, 345).

Contributory negligence of the financial administration

Contributory negligence on the part of the tax office due to a lack of control and enforcement measures will hardly be possible according to the case law of the tax courts. The tax office has powers, not duties, at least not towards taxpayers, so that failure to exercise them does not constitute a breach of duty.

literature

  • Tipke / Kruse : Tax Code and Tax Court Code (comment). Publishing house Dr. Otto Schmidt , Cologne 2007, ISBN 3504221240 .
  • Walter Bayer, Peter Hommelhoff, Detlef Kleindiek, Marcus Lutter: GmbH law comment . 2009
  • Neusel, Tibet: The personal liability of the managing director for taxes of the GmbH . GmbH-Rundschau 1997, 1129
  • Thomas Steeger: The managing director's tax liability . Cologne 1998, ISBN 3-452-24012-6
  • Leibner / Pump: Risks of third party effects for the liability debtor . AO-StB 2003, 118

Individual evidence

  1. ↑ Federal Fiscal Court (BFH) v. March 7, 1995 - VII B 172/94, BFH / NV 1995, 941
  2. ↑ BFH v. July 8, 1982 - VR 7/76, BStBl. II 1983, 249
  3. ↑ BFH v. July 26, 1988 - VII R 83/87, BStBl. II 1988, 859
  4. ↑ BFH v. January 31, 1961 - I 58/59 U, BStBl. III 1961
  5. ↑ BFH v. April 26, 1984 - VR 128/79, GmbHR 1985, 30
  6. ↑ BFH v. March 7, 1995 - VII B 172/94, BFH / NV 1995, 941
  7. ↑ a b BFH v. April 25, 1989 - VII S 15/89, BFH / NV 1989, 757
  8. ^ FG Münster v. February 28, 1996–1911K 2738/95, rkr., EFG 1996, 788
  9. ↑ BFH v. July 17, 1984 - VIII S 9/84, BFH / NV 86, 583
  10. ↑ BFH v. July 13, 1994 - IR 112/91, GmbHR 1995, 236
  11. ↑ a b BFH v. January 17, 1989 - VII B 96-97 / 88, BFH / NV 1989, 424
  12. ↑ BFH v. November 24, 1987 - VII R 82/84, BFH / NV 1988, 206
  13. ↑ BFH v. March 16, 1993 - VII R 57/92, BFH / NV 1993, 707
  14. ↑ BFH v. February 9, 1988 - VII B 169/87, BFH / NV 1988, 649