Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
Second Chapter
Tax definitions
Section 3
Taxes, ancillary tax payments
(1) “Taxes” shall mean payments of money, other than payments made in consideration of the performance of a particular activity, which are collected by a public body for the purpose of raising revenue and imposed by the body on all persons to whom the characteristics on which the law bases liability for payment apply; the raising of revenue may be a secondary objective.
(2) “Non-personal taxes” shall mean real property tax and trade tax.
(3) Import and export duties pursuant to Article 5 numbers 20 and 21 of the Union Customs Code shall be taxes within the meaning of this Code. The Union Customs Code is Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1, OJ L 287, p. 90), as amended.
(4) “Ancillary tax payments” shall mean
1. fees for delay pursuant to section 146(2b),
2. late-filing penalties pursuant to section 152,
3. penalties pursuant to section 162(4),
4. interest pursuant to sections 233 to 237 as well as interest in accordance with tax legislation to which sections 238 and 239 apply,
5. late-payment penalties pursuant to section 240,
6. coercive fines pursuant to section 329,
7. costs pursuant to sections 89, 178, 178a and sections 337 to 345,
8. interest on import and export duties pursuant to Article 5 numbers 20 and 21 of the Union Customs Code and
9. late-filing fees pursuant to section 22a(5) of the Income Tax Act.
(5) Revenue from interest on import and export duties pursuant to Article 5 numbers 20 and 21 of the Union Customs Code shall accrue to the Federation. Revenue from all other interest shall accrue to the political subdivision authorised to levy the corresponding tax. Revenue from costs described in section 89 shall accrue to the political subdivision whose revenue authority is responsible for issuing the advance ruling. One half of the revenue from costs described in section 178a shall accrue to the Federation, the other half to the administering political subdivisions. All other ancillary tax payments shall accrue to the administering political subdivisions.
Section 4
Law
“Law” shall mean every legal norm.
Section 5
Discretion
Where the revenue authority is authorised to use its discretion it shall do so in compliance with the purpose of the authorisation and shall respect the statutory restrictions on such discretion.
Section 6
Authorities, public and non-public entities, revenue authorities
(1) “Authority” shall mean any public entity performing public administration functions.
(1a) “Federal public entities” shall mean the authorities, the bodies responsible for the administration of justice, and the other public institutions of the Federation, of the federal corporations, of public agencies and foundations, and of the associations thereof, irrespective of their legal form.
(1b) “Land public entities” shall mean the authorities, the bodies responsible for the administration of justice, and the other public institutions of a Land, of a municipality, of an association of municipalities, of any other public law entity subject to the supervision of a Land, and of the associations thereof, irrespective of their legal form.
(1c) Associations under private law that belong to federal or Land public entities and that perform public administration functions shall be deemed federal public entities, irrespective of the involvement of non-public entities, if
1. their activities extend beyond a single Land or
2. the Federation holds the absolute majority of shares or is entitled to the absolute majority of votes.
Otherwise they shall be deemed Land public entities.
(1d) “Non-public entities” shall mean natural and legal persons, companies and other associations under private law that are not covered by subsections (1a) to (1c). If a non-public entity performs official functions of public administration, it shall to that extent be a public entity as defined by this Code.
(1e) Federal or Land public entities shall be deemed non-public entities within the meaning of this Code to the extent that they participate in competition as public enterprises.
(2) For the purposes of this Code, “revenue authorities” shall mean the following federal revenue authorities and Land revenue authorities referred to in the Fiscal Administration Act:
1. as highest authorities, the Federal Ministry of Finance and the highest Land authorities responsible for revenue administration,
2. as higher federal authorities, the Federal Central Tax Office and the Central Customs Authority,
3. as higher Land authorities, data processing centres as well as Land revenue authorities that have been given jurisdiction, throughout a given Land, over cash transactions and collection procedures, including enforcement, on the basis of an ordinance pursuant to section 17(2), third sentence, number 3 of the Fiscal Administration Act,
4. as intermediate authorities, regional finance offices,
4a. Land revenue authorities established in lieu of a regional finance office in accordance with the Fiscal Administration Act or Land legislation,
5. as local authorities, the main customs offices including their agencies, the customs investigation offices, the tax offices and the special revenue authorities of the Länder,
6. child benefit disbursement offices,
7. the central agency within the meaning of section 81 of the Income Tax Act, and
8. the German pension insurance system for miners, railway workers and maritime workers (section 40a(6) of the Income Tax Act).
Section 7
Public officials
“Public official” shall mean any person who, under German law,
1. is a civil servant or judge (section 11(1) number 3 of the Criminal Code),
2. holds any other office under public law, or
3. has otherwise been assigned to exercise public administration functions at an authority or other public entity, or on their behalf.
Section 8
Residence
Persons shall be resident at the place at which they maintain a dwelling under circumstances from which it may be inferred that they will maintain and use such dwelling.
Section 9
Habitual abode
Persons shall have their habitual abode at the place at which they are present under circumstances indicating that their stay at that place or in that area is not merely temporary. An unbroken stay of not less than six months’ duration shall be invariably and from the beginning of such stay regarded as an habitual abode in the territory of application of this Code; brief interruptions shall be excepted. The second sentence shall not apply where the stay is undertaken exclusively for visiting, recuperation, curative or similar private purposes and does not last more than one year.
Section 10
Business management
“Business management” shall mean the centre of commercial executive management.
Section 11
Registered office
Corporations, associations or pools of assets shall have their registered office at the place which is determined by law, articles of partnership, statutes, acts of foundation or similar provisions.
Section 12
Permanent establishment
“Permanent establishment” shall mean any fixed place of business or facility serving the business of an enterprise. In particular, the following shall be considered permanent establishments:
1. the place of business management,
2. branches,
3. offices,
4. factories or workshops,
5. warehouses,
6. purchasing offices or sales outlets,
7. mines, quarries or other stationary, moving or floating facilities for the exploitation of natural resources,
8. building sites or constructions or installation projects, including those moving or floating, where
a) an individual building site or construction or installation project, or
b) one of several coexistent building sites or constructions or installation projects, or
c) a number of immediately successive building sites or constructions or installation projects
last(s) more than six months.
Section 13
Permanent representative
“Permanent representative” shall mean any person who conducts the business of an enterprise in a sustained manner and, in so doing, is subject to its instructions. In particular, “permanent representative” shall mean any person who, in a sustained manner, on behalf of an enterprise,
1. concludes or brokers contracts or solicits orders, or
2. maintains a stock of goods or merchandise and makes deliveries from this stock.
Section 14
Economic activity
“Economic activity” shall mean an independent sustainable activity from which revenue or other economic benefits are derived and which comprises more than mere asset management. The intention to realise a profit shall not be required. As a rule, an activity shall be deemed to constitute asset management where assets are utilised, e.g., by investing capital assets to earn interest or by renting or leasing immovable property.
Section 15
Relatives
(1) “Relatives” shall mean:
1. fiancé(e)s, including within the meaning of the Civil Partnership Act,
2. spouses or civil partners,
3. relations by blood or by marriage in direct line,
4. siblings,
5. children of siblings,
6. spouses of siblings, and siblings of spouses,
7. siblings of the parents,
8. persons who are related to each other like parents and children through a permanent foster relationship involving a common household (foster parents and foster children).
(2) The persons referred to in subsection (1) above shall also be relatives where,
1. in the case of numbers 2, 3 and 6, the marriage or civil partnership establishing the relationship no longer exists;
2. in the case of numbers 3 to 7, the relationship by blood or by marriage has been terminated due to adoption as a child,
3. in the case of number 8, the common household no longer exists, provided that the persons continue to be related to each other like parents and children.
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