Attachment and confiscation orders

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In Germany, the garnishment and confiscation order is a foreclosure measure in the field of administrative or tax law . The seizure and confiscation order is issued by the competent enforcement authority itself. This is for example the tax office, the main customs office or the city treasury.

requirements

title
The issuance of a garnishment and confiscation order first requires an enforceable title. This title is usually a performance notice that the responsible department has sent to the debtor . This notification of benefits must be legally binding. Exceptions to this are, for example, the arrangement of immediate enforcement in the performance notice and secondary claims of the enforcement procedure (dunning fees and enforcement costs), for which no separate performance notice has to be issued if they are collected with the main claim.
Maturity of power
The cash payment to which the debtor was asked in the performance notice must be due.
Grace period
The debtor is to be granted a grace period of one week after notification of the performance offer. If no due date is specified in the performance notification, the one-week period is calculated after the notification of the performance notification.
warning
As a rule, the debtor must be warned before enforcement is initiated. Exceptions exist, for example, if the reminder would prevent the foreclosure from being successful or the debtor's whereabouts cannot be determined.

In contrast to civil law, it is not necessary to hear the debtor before the attachment and confiscation order is issued, as otherwise the enforcement debtor could prevent foreclosure.

content

The entire content of the garnishment and confiscation order must be formulated so clearly that confusion is ruled out (requirement that an administrative act be specific ). The minimum content requirements are therefore:

  • the name of the enforcement debtor,
  • the designation of the third-party debtor as the addressee of the attachment and confiscation order,
  • the exact description of the object in which the enforcement is to take place, i.e. the claim . In the context of an account attachment, however, it is not necessary, for example, to specify the account number, since the attachment in the "entire business relationship" is sufficient for the certainty.
  • the amount for which the garnishment and confiscation order is issued,
  • the prohibition on the third party debtor to pay to the enforcement debtor,
  • the command to the enforcement debtor to abstain from any disposal of the claim and
  • the arrangement of the collection of the claim.

The request to submit this declaration can be included in the attachment order. The third party debtor is liable to the enforcement authority for the damage that arises from the non-fulfillment of his obligation. He can be stopped to submit the declaration by means of a fine (e.g. Section 316 (2 ) AO )

The seizure and confiscation can also take place in separate orders, so that an attachment order and a confiscation order can be issued separately by the enforcement authority. This is particularly important when the so-called arrest in rem according to Section 324 of the Tax Code, which is only aimed at securing the claim, not its collection in the form of confiscation as an act of exploitation.

Be effective

The attachment and confiscation is the delivery to the garnishee effective (z. B. § 309 para. 2 AO). As a rule, delivery is carried out by the post with a certificate of delivery, but can also be carried out by an enforcement officer or bailiff .

The notification to the enforcement debtor of the service on the third party debtor is not a prerequisite for the order to take effect. Nevertheless, it is essential, since the attachment and confiscation orders contain the command to the enforcement debtor to abstain from any disposal of the claim. In practice, this notification is only given when the garnishment and confiscation order has demonstrably been delivered and is therefore already effective.

effect

With the delivery of a lawful garnishment and collection order to the third party debtor, a public-law garnishment lien on the attached claim arises. The third party debtor can only pay to the enforcement creditor with discharging effect. If he pays the enforcement debtor, he still has to pay the enforcement creditor again.

Appeal

The garnishment and confiscation orders can usually be contested in administrative law with an objection . In the course of the modernization of the administration, some federal states have abolished the objection procedure in some areas of administrative law by law (e.g. Lower Saxony), so that in these cases only an appeal to the administrative court is permissible.

In tax law, objection is the legal remedy.

Garnishment protection

If there are legal doubts, the transfer decision is suspended. The attachment order remains to preserve the rank.

Numerous regulations protect the debtor from being deprived of the necessary livelihood as a result of the attachment. The most well-known protective regulations include:

The seizure protection regulations also include, for example, the regulations on:

  • non-attachable remuneration ( § 850a ZPO),
  • conditionally attachable remuneration ( § 850b ZPO) and
  • the change in the seizure exemption limits ( § 850f ZPO).

The ZPO seizure protection regulations also apply in public law. The relevant applications must be submitted to the enforcement authority that issued the attachment and confiscation orders.

Legal bases

In administrative law , the legal bases are very diverse, as each federal state and the federal government have their own laws. A list of the federal and state regulations can be found in the article Administrative Enforcement Act .

In tax law , the tax code is enforced. This also applies to customs law. In some cases, through the reference in the respective state enforcement law to the AO, enforcement is also carried out in the federal states and municipalities according to the rules of §§ 249 ff. AO.

See also

Attachment and transfer order

Law enforcement agency

Web links

Individual evidence

  1. ↑ Hohrmann in: Hübschmann / Hepp / Spitaler, AO / FGO, 10th edition, § 324 AO, note 65 with reference to the BGH of November 17, 1983 - III ZR 194/82, BGHZ 89, 86