Tax guarantee
With the control guarantee the issuing assumes guarantor the liability for the proper payment of deferred taxes by the taxpayer .
General
A deferral is for the claims of the financial management of control obligations , consumption tax and customs possible. The tax authorities can defer claims from the tax debt relationship in whole or in part if the collection when due would mean considerable hardship for the tax debtor and the claim does not appear to be endangered by the deferral; As a rule, the deferral should only be granted upon application and against provision of security ( Section 222 AO ). A guarantee or a promise of debt ( Section 241 (1) No. 7 AO) from a “suitable tax guarantor” is also recognized as a security deposit ( Section 244 (2) AO). This includes the credit institutions and insurance companies approved by the Federal Finance Directorate that are allowed to take on these guarantees.
The tax payment risk can be covered by third parties (e.g. credit institutes, insurers) in the form of a tax guarantee. The creditworthiness of the credit institute / insurer should give the tax office the opportunity to fall back on them if the taxpayer cannot pay.
Legal issues
The tax guarantee is a sub-form of the guarantee . It is regulated in § 765 ff. BGB , which is to be applied to the tax guarantee. If German laws require a security deposit, they prefer the surety to the guarantee (e.g. Section 244 (1) AO).
In numerous regulations of the AO ( § 109 Abs. 3 AO, § 165 Abs. 1 AO, § 221 AO, § 222 AO, § 361 AO) or consumption tax laws ( § 11 EnergieStG , § 13 EnergieStG, § 15 EnergieStG, § 18 EnergieStG , § 6 AlkStG , § 14 , § 15 AlkStG or § 18 Abs. 1 KaffeeStV for the transportation of coffee under tax suspension ) the provision of a security deposit is intended or permitted. The security provision in customs law is of greatest importance , here the customs bond is provided as a sub-form of the tax bond.
Approval as a “suitable tax guarantor” is an administrative act and is at the discretion of the tax authorities ; However, since there is a right to an error-free exercise of discretion, an institution that meets the legal requirements and has no objective objections to its use as a tax guarantor must be approved for this purpose. When approved a maximum amount is to be determined as Deposit. The totality of the obligations that the credit institute / insurer has assumed under § 244 (2) AO from promises of debt, guarantees and promises to change to the tax authorities may not exceed the guarantee amount. Withdrawal and revocation of admission are based on §§ 130, 131 AO.
Credit institutions issue tax bonds as part of the guarantee credit , insurance companies as part of the deposit insurance . The guarantee credit is banking within the meaning of Section 1 (1) No. 8 KWG , while the deposit insurance is insurance for the account of a third party in accordance with Section 43 VVG . According to the legal definition of Section 43 (1) VVG, the policyholder can conclude an insurance contract in his own name for someone else. The “other” is the beneficiary from the surety / guarantee, to whom the rights from the insurance contract are entitled ( Section 44 (1) VVG) but are overlaid by the legal relationship from the guarantee / surety.
Tax guarantees must contain the waiver of the defense of the advance action according to § 771 BGB (§ 244 Abs. 1 AO)
Legal consequences
The guarantee case occurs in the case of tax guarantees if the tax debtor does not pay the tax or does not pay it in full after the deferral period has expired. The tax authorities may only request the amount of the guarantee if the main secured liability exists and the security event agreed or assumed by the contracting parties has occurred. Then the tax authorities only have to assert what was the payment condition of the guarantee (so-called formal guarantee case ). Furthermore, except in the case of a guarantee on first request , the obligee must prove the conclusiveness of the main claim (so-called material guarantee case ). In doing so, he has to prove that the tax claim secured by the guarantee is due. If the prerequisites are met, the creditor may claim the credit institute or the insurance from the given tax guarantee for cash payments.
The bank or the insurance company is then obliged to make payment under the guarantee. With the payment of the tax guarantee according to § 774 Paragraph 1 BGB, the tax claim of the tax authorities against the main debtor is transferred to the surety by operation of law ( legal session ).
International
Internationally, the tax guarantee is limited to the subtype of customs guarantee in major countries. In Austria , credit institutions based in the EU with branches in the area of application are recognized as tax guarantees within the meaning of Art. 195 Customs Code of the Union in accordance with Section 70 Customs Law Implementation Act . In Switzerland , Article 10, Paragraph 1 of the Mineral Oil Tax Ordinance (MinöStV) stipulates that the tax guarantee as a solidarity guarantee can secure all tax claims against the taxable person. If the tax surety pays the claim, the General Customs Directorate will issue a certificate upon request, which will serve as a basis for recourse to the taxable person and as a definitive legal opening title (Art. 11 MinöStV). Like the customs guarantee, the Swiss tax guarantee is a contract under public law between the authority and the surety.
Individual evidence
- ↑ Alexander Retemeyer, Security through a bank guarantee , 1995, p. 81
- ↑ BGH NJW 1984, 2456 , 2457
- ↑ BGH NJW 1997, 1435
- ↑ Swiss Federal Administrative Court , judgment of February 12, 2015, Az .: A-6175/2013
