Tax assistant

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Tax auxiliaries are natural persons who can be appointed by the tax authorities to determine facts that are significant under customs or excise tax law in accordance with Section 217 of the Tax Code (AO) . Tax auxiliaries may not be affected by the result of the determination themselves, d. H. do not take advantage of the findings made.

With the appointment, the person becomes an official within the meaning of § 7 No. 3 AO. Unlike an agent according to According to § 214 AO, the tax assistant does not need to belong to the taxpayer's business or company, but can be a non-business person such as B. be a forwarding agent or a pilot.

Purpose of the order

The tax code uses the legal term of the order , which is identical to approval. The concept of appointment does not mean that tax assistants can also be appointed ex officio . Often their appointment is preceded by an application from the taxpayer .

The use of tax assistants primarily serves the administrative economy. The administration takes advantage of the fact that persons outside the administration have to make determinations that are necessary for operational purposes (e.g. inspecting goods for defects in order to be able to assert liability for defects, or checking the weight or quantity of goods ). Tax auxiliaries can also help to absorb extra work due to e.g. B. newly assigned tasks. In particular, by ordering tax assistants, customs clearance outside of the opening times or outside of the office can be minimized.

The appointment of tax assistants also means a considerable benefit for companies and businesses. Be it that time is saved during clearance at the official station because the clearance officer no longer has to determine the quantity or weight himself because the quantity and / or weight have already been determined by the buyer at the seller in the third country (e.g. Switzerland) . Be it that the handling officer does not appear at all or only checks on a random basis, which saves time and costs (handling fees) for handling outside the official seat, i.e. in the company.

Tasks and group of people

Tax assistants are not representatives of the taxpayer for the fulfillment of tax obligations incumbent on him like the agents according to § 214 AO, but support the tax authorities in the determination of tax-relevant facts. The assessment of the established facts, however, may not be carried out by tax assistants. This task is the responsibility of the financial administration.

Facts that are significant under customs and excise tax law are fixed features such as B. the amount in the form of number and / or weight, the description of the goods, their content, but also their type and composition, their type or the determination of their fat, water and / or sucrose content, or whether z. B. with meat fore or hind quarters, what type of cut is given, how many ribs there are, etc., or whether it is fresh milk that is neither thickened nor sugared, or what number of knots z. B. Have carpets.

In principle, every person can be considered for establishing facts in the above sense. This can also be a person who does not work in the customs party's business. Examples include laboratory assistants, dairy, butchers and weighing masters. These persons must be qualified for the tasks that are to be assigned to them. They must have the appropriate skills and knowledge of the goods, i.e. the relevant expertise. In particular, you must be able to address the goods with all the features required for classification in the customs tariff or the market regulation goods list, especially when determining the category. However, there are no excessive demands on qualifications.

In any case, future tax assistants must be considered reliable. There can be no doubt about their conscientiousness and accuracy. The reliability will usually result from the application documents or from the customs office's own knowledge of the applicant's operational circumstances. If necessary, an extract from the criminal record or a police clearance certificate must be requested. The future tax auxiliaries may under no circumstances have a criminal record for tax offenses, property and / or property offenses , in particular subsidy fraud. The company that applies for the appointment of a tax assistant must also be considered reliable. Where the customs have already carried out a tax audit , the question should be answered.

Order

The authorization basis for the appointment of tax auxiliaries is § 217 AO. The order is placed through the main customs office .

The appointment of tax assistants is basically to be qualified as an administrative act . Its legal definition results from Section 118 AO, the requirements of which are readily met. Only in the case of the feature of "direct legal effect to the outside" could one have doubts as to what it consists of. This consists in the fact that after the approval takes effect, the findings of the tax assistants are considered official findings.

Legally, there is an administrative act that requires cooperation. An appointment against the will of the person concerned is not possible and may be contested with an objection .

The order instruction must contain the following minimum information:

  • The description of the tasks assigned to the tax assistant,
  • the requirements for the applicant,
  • an instruction regarding impermissible influence,
  • a reservation to the complete or random examination of the activity of the tax assistant in individual cases
  • a notice that the tax assistant may only certify the facts that they have determined themselves and
  • an instruction on legal remedies.

The record of the tax assistant's obligation is made on the official form.

Requirements and monitoring

The appointment as a tax assistant is subject to revocation, so that according to Section 131, Paragraph 2, No. 1, Section 120, Paragraph 2, No. 3 AO can be revoked in the event of an improper exercise of the activity .

The findings of tax auxiliaries are subject to complete or random checks by the main customs office.

In the event of a breach of the duties assigned to them, a tax assistant may be entitled to breach the duty of confidentiality ( § 203 , § 204 StGB), accept benefits ( § 331 StGB), corruptibility ( § 332 StGB), false certification in office ( § 348 StGB) or breach of tax secrecy ( § 355 StGB).

The tax assistant is only liable in the event of a breach of official or service duty threatened with a penalty ( Section 32 AO). Disciplinary measures are not penalties within the meaning of the regulation.

literature

  • Hans-Peter Duric: Appointment and supervision of tax assistants . In: Journal for Customs and Excise Taxes (ZfZ) 1982, p. 102 ff
  • Hans-Peter Duric: The customs assistant in export refund law, especially their monitoring . In ZfZ 2000, s. 139 ff
  • Hans-Peter Duric: Limited use or elimination of tax assistants for export refunds in the market regulation area . In ZfZ 1991, p. 165
  • Hübschmann, Hepp, Spitaler: Commentary on the tax code . § 217, Verlag Dr. Otto Schmidt, Cologne, 2009, ISBN 978-3-504-22085-3
  • Koch: Comment on the tax code . § 217, Heymanns Verlag GmbH; 4th edition, September 1995, ISBN 3-452-22112-1
  • Kurt Behrensdorf, Fritz Bukies: Customs assistants . In: Law of the International Economy / Foreign Trade Service 1973, p. 643 f
  • Tipke, Kruse: Commentary on the tax code . § 217, loose-leaf work, Verlag Dr. Otto Schmidt ISBN 978-3-504-22119-5 , ISBN 978-3-504-22124-9

Web links

Individual evidence

  1. ↑ The Tax Commissioner website of the Bundesanzeiger Verlag , accessed on November 18, 2018
  2. ↑ Annette Wöhner: Schwarz / Pahlke, AO § 217 tax assistants / 6 appointment, recital no. 11
  3. ↑ Application decree for the tax code (AEAO) of January 31, 2014, p. 19