Suppression (enforceable claim under public law)
A crackdown is on
- an internal administrative measure,
- an administrative and organizational order to refrain from further collection of public law claims after unsuccessful enforcement,
- a measure to avoid unnecessary and disproportionate administrative burdens.
term
The enforcement order sums it up as follows: "Claims arising from the tax obligation ( Section 37 Fiscal Code (AO)) should be put down if it is certain that the collection will not be successful or if the costs of collection are disproportionate to the amount ( Section 261 AO ). This also applies to administrative fines as well as to costs due to notices of the tax authorities in the fine procedure (§ 412 Abs. 2, 3 AO). “Dogmatically, the crackdown in contrast to the decree is due to Otto Mayer .
Factual requirements
The factual prerequisites that are identical to Section 156 (2) AO are formulated alternatively:
Foreseeable failure of further collection
In the course of the mass administration of public law claims, it is imperative for administrative economics to reduce the intensity of the recovery efforts, including the monitoring of the receivables, to a minimum after all enforcement options that can be implemented at short notice, since the service staff responsible for the enforcement are required, the majority of them personnel and factual capacity to use in the enforcement of the new enforcement cases, which are new after the due date. For this reason, § 261 AO i. V. m. § 5 AO, within the scope of the discretion granted to the administration, the permanent examination and decision on the profitability of further intensive processing of already exhaustively recovered cases.
Facts that suggest the suppression can be classified in the following typology:
Case-specific reasons inherent in enforcement
Surrender of residence of the debtor
The debtor has given up his previous place of residence without giving his new address or has moved abroad with an unknown place of residence.
Unsuccessful enforcement
After exhaustion of all factual investigation measures according to According to § 249 Paragraph 2, § 88 AO including account retrieval with subsequent collection and sufficient time without payment, a timely cash flow is no longer to be expected. This also includes the operation of a foreseeable lengthy foreclosure auction .
Recovery costs
When the costs of collection are disproportionate to the amount must be decided on a case-by-case basis; there is no generally applicable rule. Section 15 (1) sentence 2 of the enforcement order states:
- “As a rule, it can be assumed that the costs of collection are disproportionate to the amount owed if
- the sum of the outstanding amounts is less than twenty-five euros, unless the execution order can be carried out together with execution orders against other debtors without excessive expenditure of time,
- the sum of the outstanding amounts is less than two hundred and fifty euros, the enforcement of the movable property by the enforcement officer was unsuccessful and other enforcement options, for example garnishment of wages or accounts, are not evident even after evaluating the tax files,
- the sum of the arrears amounts to less than two hundred and fifty euros, but the enforcement debtor has moved unknown, the determination of the whereabouts of the competent authorities was unsuccessful and, for the rest, there are no enforcement options under number 2.
External enforcement reasons
Debt with other government agencies
After positive knowledge of the enforcement officers, the debtor has significant, already suppressed liabilities with other tax offices or other authorities.
Death of the debtor
The debtor has died and has left behind no assets worth enforcing ( surrender ), or the heir identification with subsequent legal successor claim with separate performance requirement , if the administrative act to be enforced takes effect against the legal successor without having been notified to the heir beforehand ( Section 254, Paragraph 1 Sentence 4 in conjunction with Section 45 AO, Section 19 Paragraph 1 Sentence 3 VollstrA).
Pending bankruptcy proceedings
The debtor is acc. § 240 ZPO insolvency proceedings have been opened; according to Section 251 (2) AO is an absolute prohibition of individual enforcement (exception: pending foreclosures , compulsory administrations or collections based on enforceable collateral on property or rights equivalent to property)
Submission of the affidavit
The debtor already has the affidavit according to Section 802c (3) ZPO or in accordance with Section 284 (3) AO. Based on the protocol, it is clear that the debtor has no recoverable assets or income.
Legal consequences
Existence of the claim
The crackdown is an internal administrative measure; it does not have the quality of an administrative act according to § 118 AO or § 35 Administrative Procedure Act. Unlike the decree, the suppression does not affect the existence of the claim. The claim remains fully enforceable; they may at any time until the onset of payment limitation gem. § 229 AO are newly collected. A subjective right to crackdown does not exist, therefore the debtor by making / failure to carry out the crackdown is not complaining .
Possible procedural decisions
Continuous monitoring of the limitation period
Pursuant to Section 17 (1) of the enforcement order, in the event of a defeat due to a lack of prospect of success in the enforcement, the enforcement agency - especially in the case of larger arrears - must randomly examine the financial and income situation of the enforcement debtor before the statute of limitations commences (Section 20 (2)), if necessary the To interrupt the statute of limitations by measures according to § 231 AO and to continue the enforcement. Monitoring can be dispensed with as soon as it is certain that future realization of the claims can no longer be expected, e.g. B. in the case of the bankruptcy proceedings or the dissolved company without liability.
Immediate waiver of limitation monitoring
In cases that are clearly no longer successfully enforceable - e.g. B. Debtors have died, heirs have knocked out the inheritance due to over-indebtedness - the public-law creditor can waive the monitoring of the expiry of the statute of limitations. If it is to be assumed that the collection will be permanently unsuccessful because of the debtor's economic circumstances (for example, several unsuccessful executions) or for other reasons (for example, death, emigration, dissolution of a legal entity), one of them may further prosecution of the claim are refrained from (unlimited cancellation). The same applies if it can be assumed that the costs of collection are too high in relation to the amount of the claim. In addition to the expenses that arise directly from the collection, the costs also include the proportionate other administrative expenses.
Function of the crackdown
organization
Appropriate use of resources
Internally, the suppression guarantees the appropriate use of limited administrative resources for enforcement cases of varying quality and creditworthiness.
Control of the tax collection order
With the observation and evaluation of the enforcement and enforcement activities in the authority, the management of the department or the office management has an effective monitoring instrument because of the timeliness to be guaranteed between the date of the enforcement backlog and the technical processing in the form of the enforcement order. In particular, the quantitative recording of the time lapse between the arrears notification date and the cancellation, taking into account an analysis of the due date breakdowns created at times, enables the enforcement staff, the authorities and the audit offices to assess the proper control of the process flows in tax / public law enforcement with little effort.
information
In terms of budget law , the recording of the crackdowns carried out in a budget period, taking into account the requirement of budget accuracy and budget clarity, has an information function, since the implementation of the crackdown is carried out by the state and federal government and the parliamentary bodies with control, including the state audit offices and the Federal Audit Office, both fulfillment and non-fulfillment of the statutory tasks as well as the collectibility of the public law claims.
literature
- Michael App, On the feature and on cases of the hopelessness of enforcement, Zeitschrift für Kommunalfinanzen 2013, 35–36
- Roberto Bartone, The suppression of claims from the tax obligation, Der AO-Steuerberater 2003, pages 420-422.
- Pump, The crackdown in accordance with § 261 AO - considerations about a significant legal institution -, DStZ 1985 p. 274 ff.
Individual evidence
- ↑ Kruse in Tipke / Kruse, Commentary on the Tax Code (AO) and Tax Court Code (FGO), § 261 Note 1
- ↑ General administrative regulation on the execution of enforcement according to the tax code (enforcement order - VollstrA) [1]
- ↑ Otto Mayer German Administrative Law, 2nd edition 1914, Vol. I, p. 350.
- ↑ Müller-Eiselt in: Hübschman / Hepp / Spittaler, Commentary on the Tax Code, Section 261, Note 5
- ↑ Annual report 2008 of the State Audit Office of Saxony, p. 337 [2] (PDF; 181 kB)
- ↑ Hübschman / Hepp / Spittaler, Commentary on the Tax Code, Section 261, Note 7
- ↑ Hübschman / Hepp / Spittaler, Commentary on the Tax Code, Section 261, Note 7
- ^ Tipke / Kruse, Commentary on the Tax Code and Tax Court Code, § 261 Note 1
- ↑ Hansestadt Hamburg 14.059 VV to § 59 LHO 68 / data / ( Memento of the original of October 31, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ see e.g. Hessian Court of Auditors, Twentieth Summary Report 2009 (Big City Report), there 5.9, view 61: Organization of receivables management
- ↑ Federal Ministry of Finance: Status and development of tax arrears 2010 ( Memento of the original from December 19, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Monthly report of December 22, 2011
- ↑ Annual report of the Saxony Court of Auditors 2008, page 352 [3] (PDF; 181 kB)
