Late payment penalty
Late payment surcharge is a term from German administrative law . It is levied as an additional charge in the event of late payment of a fee , contribution or tax . In the case of fees, the administrative procedural laws often provide for an equitable regulation , i.e. the option to refrain from collecting them. For contributions and taxes, on the other hand, the late payment surcharge arises by law and therefore without any discretion on the part of the determining authority . The legally correct technical term in these cases is that "a late payment penalty has been forfeited due to late payment" .
Purpose / objective
The late payment surcharge aims to encourage citizens to meet their payment obligations promptly. In addition to a punitive function , an appropriate interest rate on the claim is also desired. Furthermore, the surcharge should cover the additional costs that arise from reminder and monitoring work.
Late payment penalty in German administrative law
German administrative law is - depending on the distribution of competencies - regulated by federal and state laws as well as by municipal statutes .
Surcharge for late payment on administration costs
In accordance with the legislative and administrative competencies, there are a large number of sources for the statutory regulation of late payment surcharges in the administrative cost procedure. However, the differences in the individual legal norms are only minor. Most regulations provide for an outstanding amount of more than € 50 and rounding down to € 50. The amount of the surcharge is consistently 1 percent. H. per commenced month of default in payment . An example of the statutory regulation of late payment surcharges in the administrative cost procedure is provided by Section 7a of the Lower Saxony Administrative Costs Act (NVwKostG):
- (1) If the costs are not paid by the end of one month after the due date, a late payment penalty of one percent of the outstanding amount can be levied for each commenced month of late payment, if this exceeds fifty euros. To calculate the late payment surcharge, the amount in arrears must be rounded down to fifty euros.
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(2) The day on which a payment has been made is considered
- 1. when transferring or sending means of payment to the cash desk or paying agent responsible for the cost creditor, the day of receipt;
- 2. in the case of transfer or payment to an account of the cash register or paying agent responsible for the cost creditor, the day on which the amount is credited to the cash register or paying agent.
Late payment surcharge on contributions
Contributions to social security (see also social security contributions ) are by the due date of the contribution collection agency to pay. The time of receipt of the money is decisive, not z. B. placing the order with the bank . The contribution must therefore already be credited to the recipient's account on the due date.
The collection of contributions and the forwarding of the contributions to the respective social insurance agency are carried out by the health insurance companies in Germany ; they are legally obliged to collect the contributions in full and to pay them every working day. If the due contributions are not paid on time, the health insurance company must levy a late payment surcharge ( Section 24 SGB IV ). The late payment surcharge is calculated for each commenced month of late payment and amounts to 1 percent of the arrears amount rounded down to € 50. It can also - if provided for in the fund's statutes - charge a reminder fee .
Example:
- GSV contribution of € 1,526.58 for June 2006 is due on June 28, 2006.
- Payment will be made on June 30th
- Calculation of the late payment surcharge: 1 percent from 1500 € = 15 €.
- If no payment is made, a further € 15 late payment surcharge will be due on the next due date.
With the entry into force of the GKV Competition Strengthening Act (GKV-WSG) on April 1, 2007, according to Section 24 (1a) SGB IV, contributions pursuant to Section 5 (1) No. 13 SGB V and Section 2 (1) No. 7 KVLG 1989 who are in arrears for more than a month, 5 percent after the above Regulations calculated. This regulation was abolished again with the law on the elimination of excessive social demands in health insurance contributions, which came into force on August 1, 2013.
Calculation example:
| month | Contribution | Late payment penalty |
|---|---|---|
| Month 1 | 100 € | 1 € |
| Month 2 | 100 € | 1 € |
| Month 2 | 100 € (from month 1) | 1 € |
| Month 3 | 100 € | 1 € |
| Month 3 | 200 € (from month 1 & 2) | € 2 |
| Total late payment penalty for 3 months | € 1 + € 1 + € 1 + € 1 + € 2 = | 6 € |
The day of payment is always the value date at the health insurance company. Delays through the bank route must therefore be adequately taken into account when making payments. It is therefore advisable to give the health insurance company a direct debit authorization . However, the responsibility for the timely collection does not pass to the cash register; the debtor must ensure that there is sufficient funds in the account.
Whether or not late payment surcharges are calculated is basically not at the discretion of the collection point, as the late payment surcharges are incurred due to the statutory regulation without the involvement of those involved. In a few exceptional cases, however, late payment surcharges can be waived by the health insurance company upon request. These exceptions were stipulated in the "joint announcement of the top social insurance organizations on the collection of late payment surcharges according to § 24 SGB IV within the framework of the total social insurance contribution from 01.01.1995" of November 9, 1994.
Late payment surcharge on taxes
The late payment surcharges count towards the additional tax benefits i. S. d. Section 3 (4 ) AO , the legal basis is provided by Section 240 AO: If a tax is not paid by the due date, a late payment surcharge of 1 percent of the rounded-down tax amount must be paid for each month or part thereof. rounded down to the next amount divisible by 50 euros. Because the late payment surcharge is required by law, without any discretion and regardless of any fault on the part of the debtor, a grace period applies: a late payment surcharge is not levied if the payment is made by bank transfer for up to three days. Since January 1, 2007, a payment by check according to § 224 Paragraph 2 No. 1 AO is only considered paid on the third day after receipt by the tax office.
Example:
The first property tax rate is due on February 15th. The grace period begins on February 16 (midnight) and runs until February 18 (midnight).
The citizen pays his property tax rate of 1,886 €
- Check received on February 16: there is a 1 percent late payment penalty. H. of 1,850 € = 18.50 €.
- Transfer that will be credited on February 18th: there is no late payment penalty, as the payment was received within the grace period.
- Transfer posted on February 19th: there is a late payment penalty of 1%. H. of 1850 € = 18.50 €.
- Transfer posted on March 16: there is a late payment surcharge of 2%. H. of 1850 € = 37.00 €, since the second month of default has already started.
fixing
Default surcharges on taxes do not need to be determined by administrative act , but arise by law. Only in the case of compulsory collection is a performance requirement required under certain conditions .
Decree
The collection of forfeited late payment surcharges can be unreasonable for objective or personal reasons and thus represent the possibility of waiving the surcharges.
Personal reasons of equity are to be assumed in the following cases:
- In the event of sudden illness of the debtor, if this prevented him from paying punctually and since his illness until the expiry of the payment period he was unable to appoint a representative to make the payment,
- in the case of a taxpayer who has been punctual and who has made an apparent oversight.
An enactment for objective reasons of equity comes into consideration if the collection of the late payment surcharges can no longer be justified with regard to the purpose because their creation runs counter to the evaluations of the legislature. This can be the case in the following cases:
- If the late payment surcharges apply to a period in which the debtor was undoubtedly overindebted and insolvent .
- If the conditions for a waiver or an interest-free deferral of the main debt to be paid (fee / contribution / tax) have been met, even if no application for waiver or deferral has been made.
However, there is no factual inequity if an original assessment notice is changed. According to the express legal regulation, the cancellation or change of a stipulation does not lead to a change in the late payment surcharges forfeited up to that point.
Demarcation
The late payment surcharges are to be distinguished from
- Late surcharges that can be set if tax returns are not submitted in time,
- Penalty payments that can be threatened and set in order to enforce claims and enforce obligations, in particular to submit tax returns and participate in tax investigation proceedings,
- Interest on back tax claims,
- Dunning costs that can be calculated in the private sector when creating a payment reminder.
Individual evidence
- ↑ Synopsis on § 24 SGB IV from August 1 , 2013, Buzer.de
- ↑ Debt trap eliminated. Federal Government, September 18, 2013, accessed December 10, 2015 .
- ^ FG Munich: Serious constitutional doubts about the levying of late payment penalties in the event of overindebtedness and insolvency of the taxpayer , judgment of August 13, 2018 - 14 V 736/18
