Administrative enforcement
The term of administrative enforcement means the compulsory enforcement of administrative acts by administrative authorities . In the case of monetary claims , the relevant enforcement authority is usually active.
Corresponding regulations for the federal administration in Germany are contained in the Administrative Enforcement Act (VwVG). The state administrative enforcement laws of individual federal states are partly based on this. For tax debts , § § 249 ff. Tax Code contain provisions on state enforcement , which is referred to as enforcement in the area of the Tax Code. If levies are to be enforced by the municipalities (e.g. property or trade tax, but also disposal fees, road construction contributions, etc.), the respective enforcement law of the federal state applies primarily, however, only secondarily (by referral) the AO if necessary.
In terms of financial resources, the enforcement of monetary claims at the tax offices, main customs offices and municipalities is more important than any other type of enforcement.
Basis of administrative enforcement
The basis for administrative enforcement is an enforceable administrative act.
- No final power is required for tax debts and liability claims so that the title (the decision) can be enforced. The prerequisites for enforcement can be found in § 249 ff. AO.
Enforceability is given,
- if the period of appeal has expired,
- a final negative decision on the appeal was made,
- the suspensive effect of legal remedies by law or through immediate enforcement ordered by the authorities no longer applies.
- if, in the case of monetary claims, the claim has been dunned or a dunning notice can be waived in the specific case at hand (e.g. the debtor's whereabouts are unknown) and a legally stipulated payment deadline has passed (usually seven days).
According to the type of the underlying administrative act, a distinction is made between
- Administrative acts that require a cash benefit
- other administrative acts
Enforcement of monetary claims
The enforcement procedures of administrative acts ordering the payment of a public cash benefit, was formerly known as recovery referred (enforcement procedure). These are, for example, tax debts from tax or liability notices, fines or penalty payments or the reclaiming of wrongly received social benefits .
Enforcement of taxes
The legal basis for the enforcement of taxes and liability notices is contained in § 249 ff. AO. The tax office executes with its own staff. That is the principle of self-execution. The most important type of enforcement is the attachment of claims according to § 309 AO. The parking claw is practically relevant. Another type of enforcement is set-off in accordance with § 226 AO and the requests for administrative assistance according to § 250 AO to another tax office. Today the enforcement agency is often referred to as the collection agency.
Legal protection is very difficult to obtain in enforcement proceedings. Anyone who owes the amount of money can hardly protect himself effectively against its enforcement in the long term. If a specific enforcement measure is possibly incorrect, it will be revoked and the other, lawful enforcement measure will be taken without any errors of judgment.
If the tax assessment is considered incorrect or too high, this is irrelevant because of Section 256 AO. Anyone who thinks he is just a straw man confirms his tax liability. This also applies if the enforcement debtor thinks that it is only an assessment notice in accordance with § 162 AO. The tax assessment is also a full tax assessment as an assessment assessment.
The legal protection is usually only acc. § 258 AO granted by enforcement protection. This assumes that the enforcement is unjust. This assumes that another measure would be less intrusive. A use of the enforcement officer is not a milder means compared to the attachment of the account or the attachment with the credit card company, if the debtor is an acceptance point of this credit card company.
Is the set-off acc. § 226 AO is disputed, a so-called billing notice according to Section 218 (2) AO decided.
The filing of legal remedies is only possible against a specific enforcement measure in the assessment notice on which the claim is based, or in enforcement proceedings. No legal remedies can be lodged against reminders or notices of attachment, as these are not administrative acts. Because of Section 256 AO, the objections cannot be based on the fact that the claim does not exist or is too high as an estimate. For this it is necessary to lodge an objection against the tax or liability notice.
Enforcement of acts or omissions
The following are available for the other administrative files:
- Substitute performance
- Penalty payment ; If recovery is not possible the latter, takes place instead obsessive
- immediate compulsion
Three stages of enforcement acts
In these enforcement acts to obtain acts or omissions, the three stages of
- threat
- fixing
- enforcement
to be observed. This means that the next stage may only be initiated after the previous one has been completed. Both the threat and the determination are independent administrative acts against which legal remedies can be lodged.
In general, the principle of proportionality must be observed in particular during enforcement .
Special features in tax law
Tax claims can also be enforced if the tax has not yet been finalized. Tax assessment and liability notices are particularly relevant. The order of enforcement is specified by the enforcement order (VollzA). After that, the first thing to do is to calculate, then to use the fastest possible and most effective option. According to today's general opinion, this is the garnishment of claims in accordance with § 309 AO. It is enforced in the bank accounts or the claims of the enforcement debtor against the third party debtor . If this does not lead to success, the so-called list of assets according to § 249 para. 2 AO required. In it, the enforcement debtor must disclose his entire economic situation with assets and income so that the tax office can enforce these assets. At the same time, there is the possibility to request the submission of the affidavit. The tax office as a creditor is also authorized to request information from third parties as information persons in accordance with § 93 AO to demand the information necessary for a successful enforcement. This affects all power supply companies, the bar association, business partners, etc.
Even an objection or a lawsuit before the tax court does not prevent enforcement unless the suspension of enforcement has been expressly granted ( Section 361 AO, Section 69 FGO ). The suspension of execution requires a separate application and is not identical to the action or objection. Enforcement is carried out by the tax offices themselves. This is what is known as self-execution. You can also use the so-called parking claw, with which a vehicle is blocked until the tax liability is repaid. The tax offices are also entitled to order and accept the affidavit (formerly an oath of disclosure). This typically presupposes that the official in charge is qualified to serve as a judge. ( § 284 AO). The tax offices only need the decision of the competent local court for the order of personal arrest of the enforcement debtor ( Section 326 AO) and compulsory detention ( Section 334 AO).
Legal situation in Austria
For administrative enforcement in Austria → Administrative Enforcement Act 1991
Legal situation in Switzerland
The administrative obligation in Switzerland has a two- to four-stage procedure, depending on the circumstances and severity:
- Substitute performance with or without the threat of punishment under Art. 292 StGB (disobedience to official orders) or a mere order to remedy a disruption with reference to Art. 292 StGB. In individual cases, administrative penalties related to the direct offense can also be imposed.
- Debt recovery measures
- As a last resort, physical coercion through police intervention is conceivable.
literature
- Michael App †, Ralf Klomfaß, Arno Wettlaufer, Praxishandbuch Verwaltungsvollstreckungsrecht , 6th (new) edition. 2018, Carl Heymanns Verlag, ISBN 978-3-452-28988-9 (also available as digital edition)
- Hanns Engelhardt, Michael S. App, Arne Schlatmann , Administrative Enforcement Act, Administrative Delivery Act , 11th edition 2017, Verlag CH Beck, ISBN 978-3-406-71055-1
- Gerhard Sadler, Administrative Enforcement Act, Administrative Delivery Act , 9th edition 2014, CF Müller Verlag, ISBN 978-3-8114-3836-1
- HR Schwarzenbach, outline of administrative law , 7th edition (Switzerland)
- Michael Terwiesche, manual of the specialist lawyer administrative law , 1st edition 2009, Verlag Luchterhand, ISBN 978-3-472-07383-3 , chap. 14: Administrative Enforcement and Legal Protection
- Thomas Weber, Tücken des Verwaltungsvollstreckungsrechts , in: Deutsches Verwaltungsblatt 2012, Issue 18, pp. 1130–1134, ISSN 0012-1363
See also
Individual evidence
- ↑ See the overview of applicable state law at App, Michael † / Klomfaß, Ralf / Wettlaufer, Arno: Praxishandbuch Verwaltungsvollstreckungsrecht . 6th edition. Carl Heymanns, Mainz / Alsfeld 2018, ISBN 978-3-452-28988-9 , I - Concept, subject matter and types of administrative enforcement, p. 7th ff .
