Account retrieval
Under account access means the access of public authorities to account master data of bank customers.
Credit institutions in Germany are obliged to keep a file in which the account master data of their customers is saved. In cases regulated by law, the Federal Financial Supervisory Authority (BaFin) has been able to access this database since April 2003 when fulfilling its tasks, in particular for criminal purposes, and to provide information on account master data for a bank account held in Germany to other authorities. Since April 2005, the Federal Central Tax Office (BZSt) has been carrying out inquiries for the tax authorities and other authorities. B. if a taxpayer can not or does not want to provide sufficient information about his income situation. In around 45% of all cases, the account retrievals lead to the discovery of previously hidden capital income.
Legal historical development
According to § 85 AO , the tax authorities have to set and raise taxes in accordance with the law. At the end of the 1980s, in view of the lack of control by the tax authorities with regard to the completeness of the income from capital assets reported in the tax return, a discussion began about the inadequate review powers of the tax authorities . In particular, it was asserted that the accuracy and completeness of the information on income from capital assets was beyond the control of the tax offices. The income tax on income from capital assets has mutated into a "stupid tax", since only a minority of taxpayers truthfully declared income from capital assets. This organizational and enforcement deficit leads to a violation of the general principle of equality in terms of income from capital assets according to Article 3 of the Basic Law .
The Federal Constitutional Court followed this line of argument in its decision, known as the “interest judgment”. The Second Senate had the constitutional standards to answer the question of when the legislature can be assigned a structural enforcement deficit in an income tax norm, with the result that the violation of the actual equal burden associated with the collection deficit on the substantive legal basis for the Tax collection has a retroactive effect, executed in its judgments.
The Federal Constitutional Court put the decisive procedural postulates in front of the guiding principles of its judgment:
- "If the assessment of a tax depends on the declaration of the tax debtor, increased demands are placed on the taxpayer's honesty. The legislature must therefore support tax compliance through sufficient control options that ensure equal tax burden. In the assessment procedure, the declaration principle needs to be supplemented by the verification principle. "
- ...
- "If a collection regulation has a structurally opposite effect compared to a taxable event in such a way that the taxation claim can largely not be enforced, and if the prerequisites exist for this result to be attributable to the legislature, the resulting non-equality leads to the unconstitutionality of the material one as well Tax standard. "
As a result of this decision, with effect from April 1, 2005, the tax authorities' ability to investigate capital income was expanded. A newly introduced § 93b AO enables the tax authorities according to § 93 para. 7 AO to call up data via the BfF if a request for information from the taxpayer is unsuccessful or does not promise success.
Detection of widespread social fraud
Since 2002, the Studentenwerk has been comparing the information provided by BAFöG applicants with the data held by the then Federal Office of Finance on the amount of exemption requests . According to the Federal Ministry of Education, a total of 381.4 million euros were reclaimed from more than 100,000 Bafög recipients by 2006 due to incorrect information in the benefit applications; In a total of 50,261 cases nationwide, the proceedings were forwarded to the public prosecutor's offices, which usually initiated criminal proceedings for fraud . I.a. Based on this experience, the bodies named in Section 93 (8) AO were expressly authorized to call up the account master data directly from the Federal Central Tax Office.
Legal basis
The legal basis for the account access procedure is Section 24c of the German Banking Act (KWG). The access options of the BZSt are regulated in § 93 and § 93b AO. The application decree on the tax code is also relevant.
Queryable data
The account number, opening and closing date as well as surname and all first names, date of birth of the account holder, surname and all first names of one or more possibly different beneficial owners (here also the address) as well as last name and all first names and date of birth of those authorized to dispose of the account are saved. Securities accounts are reported like accounts. Changes to the account information must be made available for retrieval on a daily basis.
The data must be historicized for 3 years. Storage began on April 1, 2003 and was specified as of July 12, 2006 (with effect from August 1, 2007).
A storage of account balances or transactions does not take place.
Procedure
Provision of the data
There is no central database (account registration center) in which the data is merged. Instead, the individual banks hold the data. In many cases, this data storage is outsourced to external service providers (e.g. the service companies of the respective banking associations). The banks are obliged to keep the data available in a separate database and do not learn which data the authorities are accessing.
Account retrieval for tax purposes
Tax authorities can call up account data via the BZSt if this is necessary for the taxation process. Authorized to make inquiries are the authorities that levy taxes on the basis of federal regulations ( Section 93 (7) No. 4 AO, e.g. for property tax ). In economically significant enforcement cases (large arrears), account inquiries are mandatory in accordance with Section 93 (7) AO as standardized, timely information on the basis of recovery.
At the discretionary review level of necessity , the following applies: If the taxpayer's bank and custody account details can be ascertained both by accessing accounts and by requesting information from third parties, when selecting the instrument of investigation, account must be taken of the fact that an account access can in individual cases affect the person concerned less than requests for information Third party. In contrast to requests for information under Section 93 (1) AO, when accessing accounts, no third party learns about the tax situation of the person concerned, in particular about the existence of tax arrears. The credit institutions may not gain knowledge of the execution of an account retrieval ( Section 93b (4) AO in conjunction with Section 24c (1) sentence 6 KWG). Therefore, an account retrieval does not lead to negative consequences for the bank customer.
Account retrieval for other purposes
The competent authorities can access account data via the BZSt in the following cases:
- Social assistance : When calculating the income that is part of the income to be taken into account when granting social assistance according to Section 82 (1) SGB XII , the income from capital assets is determined in accordance with Section 20 (1 ) to ( 3 ) EStG (Section 6 of the Ordinance on Implementation of § 82 SGB XII).
- Social insurance : In the context of statutory health, accident and pension insurance, including old-age insurance for farmers and social long-term care insurance , the total income is the sum of income within the meaning of income tax law ( Section 16 SGB IV ).
- Housing subsidies : In the case of social housing subsidies, the relevant total income is based on the sum of positive income within the meaning of Section 2 Paragraphs 1, 2 and 5a of the Income Tax Act ( Section 21 WoFG ).
- Educational support and promotion: In the case of training and promotion, the relevant income is based on the sum of positive income within the meaning of Section 2 (1) and (2) EStG ( Section 21 BAföG ; Section 17 AFBG ).
- Housing benefit : When granting housing benefit, the relevant total income is based on the sum of the positive income within the meaning of Section 2 Paragraphs 1, 2 and 5a EStG ( Section 10 WoGG ).
- Childcare allowance : When childcare allowance is granted, the income is based on the sum of positive income within the meaning of Section 2 (1) and (2) EStG ( Section 6 BEEG ), which cannot be reduced by losses in individual types of income .
- Maintenance security : The maintenance security benefits are to be reduced by the income taxable income of the conscript that he receives during military service ( § 11 USG ).
Information for those affected
In principle, prior information is provided for the person concerned if an account query is intended. Only in the case of inappropriateness of the advance information about the account access - such as the current enforcement of tax claims - is the subsequent notification of the account access carried out provided. However, after the account has been accessed, the person concerned must be notified of the access by the requesting party.
Access to accounts by bailiffs
According to Section 802l (1) ZPO , bailiffs have been able to access accounts via the BZSt since January 1, 2013 if the debtor does not comply with his obligation to provide the asset information or if, in the event of an enforcement on the assets listed there, it is unlikely that the creditor will be fully satisfied is to be expected. Access to accounts is permitted if this is necessary for enforcement. Bailiffs and social authorities made a total of 72,992 requests in 2013; together with the tax authorities, there were 141,640 requests. In 2014, the Federal Central Tax Office registered more than 230,000 account accesses. In 2013 there were almost 142,000 queries.
Case numbers development since 2005
Authorities, courts, public prosecutor's offices
Ordinary courts, public prosecutors, police authorities, customs investigation offices , tax investigation offices, penal and fines offices of tax offices, federal police inspections as well as BaFin itself can call up account data from the credit institutions via BaFin for the fulfillment of their tasks.
| Queries 2004 | Queries 2005 | Queries 2006 | Queries 2007 | Queries 2008 | Queries 2009 | Queries 2010 | .. | Queries 2012 | Queries 2013 | Queries 2014 | |
| BaFin | 1,380 | 632 | 972 | 472 | 277 | 547 | 1,371 | .. | 992 | ||
| Police authorities | 26,212 | 38,675 | 47,805 | 54.111 | 46.132 | 52,367 | 58,477 | .. | 68,066 | ||
| Tax authorities -tax investigation- | 6,057 | 10,008 | 11,838 | 13,061 | 10,936 | 11,691 | 13,673 | .. | 13,286 | ||
| Public prosecutors | 3,038 | 7,494 | 12,861 | 18.002 | 18,520 | 20,915 | 23,765 | .. | 24,629 | ||
| Customs authorities | 2,251 | 5,160 | 7.202 | 7.167 | 7,604 | 6,198 | 8,054 | .. | 7.207 | ||
| Others | 479 | 441 | 478 | 747 | 469 | 158 | 275 | .. | 184 | ||
| total | 39,417 | 62,410 | 81,156 | 93,560 | 83,938 | 91,876 | 105,615 | .. | 114.364 | 142,000 | 230,000 |
Account retrieval requests from the tax offices
| year | Number of requests |
|---|---|
| 2005 | 10.100 |
| 2006 | 25.133 |
| 2007 | 28,642 |
| 2008 | 29,214 |
| .. | .. |
| 2010 | 40,789 |
| 2011 | 40.901 |
| 2012 | 43,815 |
Account retrieval by the tax offices in 2012 by federal state
| state | Number of account requests |
|---|---|
| Schleswig-Holstein | 816 |
| Hamburg | 4,627 |
| Lower Saxony | 3,184 |
| Bremen | 258 |
| North Rhine-Westphalia | 4,843 |
| Hesse | 6,683 |
| Rhineland-Palatinate | 2,092 |
| Baden-Württemberg | 2,717 |
| Bavaria | 3,992 |
| Saarland | 821 |
| Berlin | 6,621 |
| Brandenburg | 4,487 |
| Mecklenburg-Western Pomerania | 405 |
| Saxony | 1,685 |
| Saxony-Anhalt | 485 |
| Thuringia | 529 |
| total | 43,815 |
Of the inquiries made in 2016, 98,916 (2015: 97,631) were sent to tax authorities for tax purposes; 259 312 (204 519) cases concerned inquiries from bailiffs and social authorities about possible abuse of services. According to the Federal Ministry of Finance, the number of account inquiries was 520,662 in 2017. In 2016 there were only 245,535 - the increase in the number of cases is mainly due to increased inquiries by bailiffs according to § 802l para. 1 Code of Civil Procedure.
In 2018, 796,600 account requests were made, of which 555,712 account requests were made by bailiffs and 108,315 by the tax offices.
| state | Number of account accesses in 2018 |
|---|---|
| Baden-Wuerttemberg (BW) | 73,422 |
| Bavaria (BY) | 76,604 |
| Berlin (BE) | 51,976 |
| Brandenburg (BB) | 22,957 |
| Bremen (HB) | 5,474 |
| Hamburg (HH) | 20.001 |
| Hesse (HE) | 58,053 |
| Mecklenburg-Western Pomerania (MV) | 15,809 |
| Lower Saxony (NI) | 57,319 |
| North Rhine-Westphalia (NW) | 169,622 |
| Rhineland-Palatinate (RP) | 27,909 |
| Saarland (SL) | 8,126 |
| Saxony (SN) | 39.241 |
| Saxony-Anhalt (ST) | 21,860 |
| Schleswig-Holstein (SH) | 18,900 |
| Thuringia (TH) | 21,165 |
| total | 688.438 |
The difference between the total number of account retrievals in 2018 of 796,600 and those that were allocated to the individual federal states results from the account retrieval requests for agencies of the federal administration (e.g. customs, Federal Office of Justice, BKA etc.) and real tax communities.
Legal protection and judicial control
The legality of an account retrieval according to § 93 Paragraph 7 AO can be checked by the tax court in the context of the review of the tax assessment or another administrative act, for the preparation of which the account retrieval was carried out, or in isolation by way of the performance or continuation declaratory action . In terms of procedural law, the account query is an internal authority measure that cannot be challenged with an objection or objection . In practice, this means that the review by action for a declaratory judgment is seldom or not carried out at all.
criticism
The account retrieval procedure is criticized from two sides. Data protectionists fear the so-called transparent bank customers and call for stricter access restrictions. The banks refer to the costs of the procedure, which the banks have to bear even though they are not the users of the system.
On July 12, 2007 the Federal Constitutional Court ruled on the basis of several lawsuits that the query of the account master data is compatible with the constitution. The Federal Constitutional Court criticized the fact that Section 93 (8) AO does not correspond to the clarity and definiteness of the norms and set a deadline for the new legal regulation of the query provisions until May 31, 2008. A concretization of § 93 para. 8 AO was carried out by the Corporate Tax Reform Act 2008 with effect from 18 August 2007. A law structural breach of the prohibition of excess is not clear because the existing regulatory structure to the Federal Constitutional Court represented mutual causality between declaration principle and state verification possibility both Tax law as well as in the area of state welfare in the form of the granting of benefits. An account retrieval always requires a specific reason for action in the form of a review of the prerequisites for the granting of benefits or the rectification of deficits in cooperation. With reference to the basic principle of the unity of the legal system , in view of Section 802l (1) ZPO, which has been in force since January 1, 2013, in the event of previous unsuccessful enforcement, it should be permissible and advisable to call up accounts in accordance with Section 93 (7) AO.
The Federal Commissioner for Data Protection and Freedom of Information Kelber recommends an evaluation of the procedure in view of the number of annual accesses, which has risen from 72,000 in 2012 to more than 900,000 in 2019 , since each access represents an interference with the fundamental right to informational self-determination . He points out that the authority to access accounts was decided on September 11, 2001 as a result of the terrorist attacks in order to be able to better combat money laundering and terrorist financing and that this was originally limited to the Federal Financial Supervisory Authority , in 2005 to the Federal Central Tax Office and in 2013 to bailiffs extended access authorization has become a common tool of administrative enforcement .
Comparable regulations in other countries
Austria
In Austria there is a central register, the account register , which centrally stores all data and is managed by the Federal Computing Center .
Web links
- BZSt account retrieval procedure illustration
- www.bafin.de
- BAFin, account retrieval procedure information sheet , bafin.de
- BAföG data comparison
literature
- Glück, Oliver: § 24c KWG and the right to informational self-determination - An investigation into the constitutionality of the automated retrieval of account information , Diss., Frankfurt a. M. 2005, ISBN 3-631-53780-8
- Reichling, Tilman: Massive expansion of the account query , in: DuD 2008, p. 670
- Reichling, Tilman: State Access to Bank Customer Data in Criminal Proceedings - Account Inquiries as a Criminal Procedure Investigation Measure, Possible Follow-Up Measures and Constitutional Legitimation Problems , Diss., Frankfurt a. M. 2010, ISBN 978-3-631-59949-5
- Widmaier, Gunter: The automated retrieval of account master data in criticism and in practical application , in: WM 2006 , p. 116
Individual evidence
- ↑ Straubinger Tagblatt from April 25, 2006
- ↑ a b BVerfG, judgment of June 27, 1991, Az. 2 BvR 1493/89, BVerfGE 84, 239
- ↑ BVerfGE 84, 239 <272, 284 f.>; BVerfGE 110, 94 <136 and 136>
- ↑ Armin Himmelrath , Udo Ludwig: Hunt for Mogel Students , Spiegel 25/2003, page 50
- ↑ Armin Himmelrath: Bafög fraudsters - And then came a mail from the public prosecutor , Spiegel-online from November 20, 2007
- ↑ see e.g. Hesse Court of Auditors: Comments 2012 on the budget and economic management of the State of Hesse, Hessian Landtag, 18th electoral period, Printed matter 18/7104, No. 28.2.1, Comments 2012 on the budget and economic management of the State of Hesse, Hessian Landtag, 18th electoral term, printed matter 18/7104 ( Memento of the original from October 12, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 5.9 MB)
- ↑ Application decree to the tax code, No. 1.2.8 to § 93
- ^ Karl-Heinz Günther, Der AO-Steuerberater 2013, 35
- ↑ The «transparent bank customer»? Questions & Answers about account queries , Neues Deutschland from May 21, 2014
- ↑ Against defaulting debtors, tax and social fraudsters , Legal Tribune Online of April 28, 2014
- ↑ a b Answer of the Federal Government of July 30, 2013 to the minor question from the MPs Jan Korte, Dr. Martina Bunge, Heidrun Dittrich, other MPs and the DIE LINKE parliamentary group; - Printed matter 17/14380 - ( PDF ; 112 kB)
- ↑ Thomas Öchsner: Offices are researching more and more private accounts. Süddeutsche Zeitung , April 10, 2015, accessed on May 22, 2015 .
- ↑ Figures 2005–2011 from the German Bundestag - 17th electoral period, printed matter 17/8715 , response of the Federal Government to the minor question from MPs Jan Korte, Ulla Jelpke, Petra Pau, other MPs and the DIE LINKE parliamentary group on the subject: “Increasing use of automated account query. "of February 22, 2012, p. 9, (PDF; 245 kB)
- ^ German Bundestag, 17th electoral term, printed matter 17/14455, page 4
- ↑ t-online from January 10, 2017 ( page no longer available , search in web archives )
- ↑ FAZ of January 13, 2018, p. 27, "Number of account accesses doubled"
- ↑ Answer of the Federal Government of April 8th, 2019 to the small question of the members Christian Dürr, Renata Alt, Dr. Jens Brandenburg (Rhein-Neckar), another MP and the FDP parliamentary group - Printed matter 19/8658 -
- ↑ BVerfG, decision of February 4, 2005, Az. 2 BvR 308/04 full text .
- ↑ Finanzgericht Düsseldorf of April 25, 2007, Az. 7 K 4756/06 AO, full text = EFG 2007, page 1536, revision was approved
- ^ Tipke in Tipke / Kruse , Commentary on the Tax Code, § 93, Note 36
- ↑ s. for example, FG Berlin-Brandenburg, judgment of December 15, 2011, Az. 7 K 7203/08, full text , interest in continuation determination as a precondition for admissibility is affirmed, but the action fails due to the legality of the account retrieval that is in doubt (due to debtor obstruction)
- ↑ BVerfG, decision of June 13, 2007, Az. 1 BvR 1550/03, 1 BvR 2357/04; 1 BvR 603/05, full text ; BGBl. I 2007 p. 1673.
- ↑ Federal Data Protection Commissioner recommends evaluating the account retrieval process . In: BfDI , January 29, 2020. Accessed February 4, 2020.
