Liability (tax law)
Liability in German tax law means taking responsibility with their own assets for a foreign tax liability . This is a public law claim to which the provisions of the tax liability law apply. The liability can extend to the entire assets of the debtor or be limited to individual assets ( liability in rem ). Culpable action is only required if this is contained in the respective liability norm (e.g. § 69 , § 71 AO ) as a factual requirement.
General
The liability debt is a claim from the tax debt relationship that exists alongside the actual tax debt . Liability debtor can be any natural or legal person who fulfills the respective liability, the liability creditor is the tax office or the city / municipality as the creditor of the tax claim for which liability is to be exercised.
The prerequisite for liability is the existence of a claim from the tax obligation. This means that liability not only for taxes, but also for ancillary tax benefits such as late payment surcharges , interest or late payment surcharges comes into consideration. Does not matter whether this claim by tax assessment set was. This is unnecessary if the taxpayer no longer exists and a tax assessment is no longer possible for this reason, e.g. B. after the death of the tax debtor, after deletion of a legal person in the commercial register .
Liability notice
The liability claim is a discretionary decision of the authority. Before requesting it must as a liability creditors in addition to the existence of legal facts check if they will accept a candidate liability debtor in claim liability ( Resolution discretion ) and at several possible debtors, they who in liability company wants ( selection discretion ). For this purpose, the potential debtor must be given a legal hearing in advance . Target against a lawyer , patent attorney , notary , tax consultants , tax agents , accountants or certified accountants a notice of liability for an act within the meaning of § 69 shall be adopted AO, which he has made in the exercise of his profession, the tax authorities of the relevant professional association is an opportunity that To bring forward points of view that are of importance for the decision from your point of view, § 191 para. 2 AO. If the liable creditor comes to the conclusion that he wants to hold the debtor liable, he issues a liability notice. It will be announced according to the rules of the "disclosure of administrative acts ". The notice of liability is not a tax assessment . Since this is a discretionary decision, the reason for the judgment must be given in the notice of liability or in the appeal decision at the latest by the decision on the objection. The legal remedy is the objection or, after unsuccessful objection proceedings, the action for annulment at the tax court or, independently of this, the application according to § 130 AO in the event of changed circumstances.
Liability debtors and tax debtors are so-called “spurious” joint and several debtors . This means that the tax office or the city / municipality (tax creditor) can demand the satisfaction of their claim from everyone and the repayment of the tax by one of the joint and several debtors works for all joint and several debtors. This then leads to internal civil law compensation claims.
Third party effect of the tax assessment
Each tax assessment only affects its content addressee. An exception is contained in § 166 AO, according to which the final tax assessment is also binding on the liability debtor if he has been authorized to contest the tax assessment by objection or legal action. If § 166 AO intervenes, the liability debtor cannot assert in his objection to the liability notice that the final tax notice is wrong and that the tax liability specified therein does not exist or only to a lesser extent. So there is an exclusion of objection.
Extinction of the liability claim
The liability claim expires as soon as the underlying tax liability has expired. This is the case with full payment or waiver of the claim. The claim also expires if the underlying tax claim can no longer be determined due to the expiry of the limitation period or if the limitation period for payment has occurred after the determination has been made.
The liability claim also expires in accordance with § 47 AO through payment, remission or limitation. Both the rules on the statute of limitations as well as those on the statute of limitations for payment are applicable to the liability claim. If the tax for which there is liability has not yet been determined, the limitation period according to § 191 AO does not end before this tax has expired.
Liability
The tax laws know a large number of facts for tax liability. In addition, liability according to private law regulations can also be considered. If such a non-tax offense occurs, this must be asserted in accordance with the rules applicable to tax liability offenses; in particular, a notice of liability is also required here. Finally, a third party can undertake by contract to stand up for the tax liability of another. In these cases, the liability claim is based solely on the provisions of civil law , Section 192 AO. Enforcement through the notice of liability and thus through an administrative act would be illegal.
Tax law facts
This table contains many of the liability events mentioned in the tax laws as of January 1, 2009 .
| Legal basis | content |
|---|---|
| § 45 AO | Liability of the heirs for liability debts of the testator |
| Section 69 AO | Liability of the legal representative, asset manager or authorized person |
| Section 70 AO | Liability of the represented |
| § 71 AO | Liability of the tax evader and the tax stealer |
| Section 73 AO | Liability of the Subsidiary Company for by the affiliation relationship prompted taxes |
| § 74 AO | Liability of the owner of items |
| § 75 AO | Liability of the business owner |
| Section 76 AO | Material liability |
| Section 10b (4 ) EStG | Donation liability |
| Section 42d EStG | Employer's liability for wage taxes |
| Section 44 (5) of the Income Tax Act | Liability of the debtor of capital gains for capital gains tax |
| Section 45a (7) EStG | Liability of the issuer of an incorrect tax certificate for investment income |
| Section 48a (3) EStG | Liability of the service recipient in the event of insufficient construction withholding tax |
| Section 50a (5) EStG | Liability for withholding taxes for certain services by persons with limited tax liability |
| Section 20 (3 ) ErbStG | Liability of the estate for inheritance tax of the heirs |
| § 13c UStG | Liability in the event of assignment , pledging or attachment of claims |
| § 25d UStG | Liability for the culpably not paid sales tax |
| Section 11 GrStG | Liability of the usufructuary and the purchaser for property tax |
| Section 12 GrStG | Real liability of the tax item for property tax |
Civil law facts
This table contains civil liability events valid as of January 1, 2009, to which tax liability can relate.
| Legal basis | content |
|---|---|
| Section 54 BGB | Liability of members of a registered association with no legal capacity |
| § 25 HGB | Liability of the purchaser if the company continues |
| Section 27 of the German Commercial Code | Liability of the heir if the company continues |
| Section 28 of the German Commercial Code | Liability of the new company when a partner joins a sole proprietorship |
| Section 128 of the German Commercial Code | Liability of the partner in a general partnership or a company under civil law |
| Section 161 (2) HGB | Liability of the general partner in a limited partnership |
| § 171 ff. HGB | Liability of the limited partner in a limited partnership |
| Section 11 (2) GmbHG | Liability of the person acting on behalf of a GmbH prior to its entry in the commercial register |
| Section 24 GmbHG | Liability of the shareholder of a GmbH for his unpaid contribution |
| 41 AktG | Liability of the person acting in the name of an AG prior to its entry in the commercial register |
| Section 43 GmbHG | Liability of the manager |
| Section 93 AktG | Liability of the board members |
| 116 AktG | Liability of the members of the supervisory board |
| Section 34 GenG | Liability of the board members of a cooperative |
| Section 60 InsO | Liability of the liquidator |
literature
- Hermann Pump, Herbert Fittkau: Avoiding the liability of the GmbH managing director for tax debts of the GmbH . Berlin 2012, ISBN 978-3-503-13666-7 .
- Alois Nacke: The liability for tax debts . 3. Edition.
- Krömker: Liability of the perpetrator or assistant in tax evasion . In: AO-StB . 2002, p. 389 .
- Pump, Leibner: The liability of tax advisors and clients according to § 71 AO . In: AO-StB. No. 35 , 2004.
Individual evidence
- ^ A b Josef Schneider: Liability . In: Finance and Taxes Volume 16: Lexicon of Tax Law . Schäffer-Pöschel, Stuttgart 2008, ISBN 978-3-7910-2833-0 .
