Sham business
A sham transaction exists if the declarations of intent made mutually by the contractual partners are not intended to be legally binding and there is therefore a lack of the required will to be legally bound (simulated transaction). The sham business is regulated in § 117 BGB . It is therefore in the context of the legal grounds for invalidity of Section 116 sentence 2 ff. BGB.
General
As a rule, it is assumed that declarations of intent are aimed at the conclusion of a contract , so that the intended contract is ultimately concluded. However, if the parties only want to evoke the outward appearance of the conclusion of a legal transaction, but the legal effects associated with the legal transaction should not occur, then there is a sham transaction.
Legal consequences
Section 117 of the BGB stipulates that sham transactions are void. Nullity means that they have not had any legal effect from the start and are treated as if they had never been carried out. If, however, another legal transaction (= dissimulated transaction) is concealed by a sham transaction, the statutory provisions provided for the concealed transaction apply in accordance with Section 117 (2) BGB. The transaction that isactually intendedis fully legally effective according to Section 117 (2) BGB.
Delimitations
It is often not easy to distinguish it from fiduciary business. Section 117 (1) of the German Civil Code (BGB) is null and void if the parties involved intend to achieve their goal through the mere appearance of an effective legal transaction. On the other hand, a legal transaction is fiduciary if a legal transaction that is not consistently intended is required for the pursuit of goals and is therefore included in the decision-making process. Other existing grounds for invalidity (e.g. from §§ 134, 138 BGB) may not be taken into account. In the case of special case groups of fiduciary legal transactions, the straw man and circumvention transactions or tax fraud, the question arises whether they belong to the void pseudo transactions.
Straw man business
According to a judgment of the Federal Court of Justice of October 22, 1981, sham deals are to be distinguished from straw man deals . Since the legal success in a straw man business is usually genuinely wanted by both sides, so that there is no lack of business will on both sides, this is fully effective. The decisive factor is whether the parties really want to bring about the legal consequences of the agreement, i.e. whether the straw man is personally entitled and obliged from his business or whether the contractual partner should only stick to the man behind. The straw man knowingly wants to allow the legal consequences associated with a contract to occur. The advancement of a straw man in legal transactions then does not appear to be. Rather, the straw man business is seriously wanted, therefore such a business is legally binding for the straw man according to the established case law of the BGH.
Only if it has been agreed between the straw man and his contractual partner that claims for and against the straw man are excluded does a sham transaction exist. Under these conditions, transactions with a straw man in accordance with Section 117 (1) BGB are void. This is the case, for example, if the contracting party wants to conclude the transaction exclusively with the person behind the contract or if it is a personal legal transaction that by its nature does not tolerate a straw man. But even if the contractual partner and the straw man agree that the legal effects should not occur in the person of the straw man or the straw man does not want to assume the obligations associated with the legal transaction in the external relationship and his contractual partner is aware of this, a sham transaction can be accepted become. It is only in the case of sham business that it is not the front man but the man behind who is authorized and obliged.
Circumvention business
The circumvention transaction is a legal transaction through which the parties involved avoid a statutory prohibition by choosing a different, not expressly prohibited legal transaction . According to § 134 BGB, this is void if the purpose of the bypassed law so requires. However, not every violation of a law automatically leads to the nullity of the relevant legal transaction. Rather, in the event of a violation of the law, it must first be checked whether the norm in question is a prohibition law within the meaning of § 134 BGB. If this is the case, it must also be checked whether the sense and purpose of the prohibition rule requires the nullity of the transaction in question.
According to Roman law, the law bypasses anyone who defrauds the meaning of the law without violating the wording of the law ("contra legem facit, qui id facit quod lex prohibet; in fraudem vero, qui salvis verbis legis sententiam eius circumvenit"). According to the prevailing opinion , § 134 BGB does not require the parties to be aware of a prohibition norm (see “ Ignorantia legis non excusat ”). The violation of a prohibition unknown to both parties also makes a contract null and void if the sense and purpose of the prohibition so require. Circumvention transactions are in some cases expressly prohibited (see § § 306a , § 312 , § 475 Paragraph 1, § 478 Paragraph 4 Sentence 3, § 487 , § 506 or § 655e Paragraph 1 BGB). Avoidance transactions are therefore usually not sham transactions, since legal success is desirable on both sides, but should be achieved by avoiding legal prohibitions. They therefore belong to the category of - likewise void - legally prohibited legal transactions.
Abuse of tax structures
A broad category are the avoidance transactions entered into for tax reasons that the design abuse can cause. Tax avoidance is the abuse of forms and design options of the law in order to avoid or reduce taxes.
In principle, a taxpayer can choose the most favorable legal form for him (principle of freedom of contract ). If civil law options are abused, tax law cannot be circumvented. A distinction must be made between two facts:
- If the applicable individual tax law contains regulations, the aim of which is to prevent tax avoidance and the specific situation fulfills this fact, the legal consequence is based exclusively on this individual tax law standard ( Section 42 (1) sentence 2 AO).
- However, if the offense is not met, there is an abuse of the structuring options if an inappropriate legal structure is chosen that leads to a tax advantage not provided for by the taxpayer or a third party compared to an appropriate structure and the taxpayer has no non-tax reasons for the provides evidence of the chosen design, which is noteworthy in view of the overall picture of the situation (Section 42 (2) AO). In this case, the taxes are to be levied as they would be levied if the legal structure was appropriate to the economic processes, facts and circumstances (Section 42 (1) sentence 3 AO).
In exceptional cases, tax evasion can be punishable as tax evasion or punished as a tax offense with a fine, especially if the taxpayer does not fully disclose the facts to the tax authorities and thereby tries to disguise the background.
Under civil law, legal transactions that are assessed as structural abuse for tax purposes are fully effective because their legal success is desired by both sides.
Fake purchase
A sham purchase or "commentitia emtio" is a fake purchase transaction that is carried out, for example, by an insolvent debtor in order to deprive the creditors of the object of purchase, which is allegedly sold to someone else for a fictitious price. The bogus purchase is one of the bogus transactions. A sham purchase is void (Section 117 (1) BGB).
See also
Individual evidence
- ↑ BGH NJW 1982, 569 f
- ↑ a b OLG Karlsruhe NJW 1971, 619
- ^ A b Dieter Medicus , Jens Petersen : Civil law. A presentation on exam preparation , arranged according to the basis of entitlements , 25th edition, Verlag Franz Vahlen 2015, p. 54 f.
- ↑ a b BGH NJW 1982, 569 f.
- ↑ BGHZ 21, 378, 381
- ↑ BGH NJW 2002, 2030 under II 1 with further evidence
- ↑ a b BGH NJW 1982, 569
