Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
Fourth Chapter
Tax secrecy
Section 30
Tax secrecy
(1) Public officials shall be obliged to observe tax secrecy.
(2) Public officials shall be in breach of tax secrecy if they
1. disclose or make use of, without authorisation, a third person’s personal data that they have gained access to
a) in the course of an administrative procedure, an auditing procedure or judicial proceedings in tax matters,
b) in the course of criminal proceedings for tax crimes or administrative fine proceedings for tax-related administrative offences,
c) for other reasons, based on a notification from a revenue authority or based on the legally required submission of a tax assessment notice or of a certification of findings made during the taxation process
or
2. disclose or make use of, without authorisation, a corporate or commercial secret that has become known to them in the course of procedures/proceedings specified under number 1 above,
(the data under numbers 1 and 2 above are hereinafter referred to as “protected data”) or
3. electronically retrieve, without authorisation, protected data that have been stored in an automated filing system for procedures/proceedings specified under number 1 above.
(3) The following shall be deemed to be of equivalent status to public officials:
1. persons under special obligations to the civil service (section 11(1) number 4 of the Criminal Code),
1a. the persons designated in section 193(2) of the Act on the Constitution of Courts,
2. officially consulted experts,
3. holders of offices of the churches and other religious communities being public-law entities.
(4) The disclosure or use of protected data shall be permissible insofar as
1. such disclosure or use facilitates procedures/proceedings within the meaning of subsection (2) number 1(a) and (b) above,
1a. such disclosure or use facilitates processing by revenue authorities in accordance with section 29c(1), first sentence, number 4 or 6,
1b. such disclosure or use facilitates administrative fine proceedings in accordance with Article 83 of Regulation (EU) 2016/679 within the scope of this Code,2. such disclosure or use is expressly permitted by federal law,
2a. such disclosure or use is prescribed or permitted by European Union law,
2b. such disclosure or use helps the Federal Statistical Office perform its statutory functions,
2c. such disclosure or use facilitates regulatory impact assessments, and the conditions for further processing under section 29c(1), first sentence, number 5 have been met,
3. the persons concerned give their consent,
4. such disclosure or use facilitates criminal proceedings for a crime other than a tax crime, and such information
a) was obtained in the course of proceedings for tax crimes or tax-related administrative offences; however, this shall not apply in relation to facts which a taxpayer has disclosed while unaware that criminal proceedings or administrative fine proceedings have commenced or which have already become known in the course of the taxation procedure before the commencement of such proceedings, or
b) was obtained in the absence of any tax liability or by waiver of a right to withhold information,
5. there is a compelling public interest in such disclosure or use; such compelling public interest shall be deemed to exist in particular if
a) such disclosure is necessary to prevent significant harm to the public interest, to avert threats to public security, defence or national security, or to prevent or prosecute crimes or deliberate serious offences that aim to cause human injury or loss of life or that aim to cause damage to the state and its institutions,
b) economic crimes are being or are to be prosecuted, and which in view of the method of their perpetration or the extent of the damage caused by them are likely to substantially disrupt the economic order or to substantially undermine general confidence in the integrity of business dealings or the orderly functioning of authorities and public institutions, or
c) such disclosure is necessary to correct publicly disseminated incorrect facts which are likely to substantially undermine confidence in the administration; such decision shall be taken by the highest revenue authority responsible in mutual agreement with Federal Ministry of Finance; the taxpayer is to be consulted before correction of the facts.
(5) Wilfully false statements by the person concerned may be disclosed to the law enforcement authorities.
(6) The retrieval of protected data that have been stored in an automated filing system for one of the procedures/proceedings specified under subsection (2) number 1 above shall be permissible only insofar as such retrieval facilitates a procedure/proceedings described under subsection (2) number 1a or 1b above or facilitates the permissible transmission of protected data by a revenue authority to the data subject or to a third party. To protect tax secrecy, the Federal Ministry of Finance may stipulate, by way of ordinances issued with the consent of the Bundesrat, which technical and organisational measures must be adopted to prevent the unauthorised retrieval of data. In particular, the Federal Ministry of Finance may adopt more detailed rules on the type of data that are permissible to retrieve and on the set of public officials who are authorised to retrieve such data. Ordinances pertaining to motor vehicle tax, aviation tax, insurance tax, import and export duties, and excise duties with the exception of beer duty shall not require the consent of the Bundesrat.
(7) In the event that data subject to tax secrecy are transmitted in accordance with section 87a(4) or (7) by a public official or persons of equivalent status under subsection (3) above using DE-Mail services within the meaning of section 1 of the DE-Mail Act, no unauthorised disclosure or use and no unauthorised retrieval of data subject to tax secrecy shall be deemed to have occurred if during transmission a temporary automated decryption is performed by an accredited service provider for the purpose of checking for malware and for the purpose of forwarding the data to the addressee of the DE-Mail message.
(8) The establishment of an automated procedure that enables protected data to be cross-checked within a revenue authority or among various revenue authorities shall be permissible insofar as the further processing or the disclosure of such data is permissible and such procedure is suitable in light of the legitimate interests of the data subject and the functions to be performed by the participating revenue authorities.
(9) When personal data are to be processed, revenue authorities may use the services of a processor as defined in Article 4(8) of Regulation (EU) 2016/679 only if the data in question are processed exclusively by persons who are required to observe tax secrecy.
(10) Revenue authorities shall be permitted to disclose special categories of personal data as described in Article 9(1) of Regulation (EU) 2016/679 to public or non-public entities if the conditions stipulated in subsection (4) or (5) above have been met and an exception under Article 9(2) of Regulation (EU) 2016/679 or under section 31c applies.
(11) If protected data have been disclosed in accordance with subsections (4) or (5) above to
1. a person who is not required to observe tax secrecy,
2. a public entity that is not a revenue authority, or
3. a non-public entity,
the recipient may store, alter, use or transmit these data only for the purpose for which they were disclosed to him. In cases where such protected data become known to public officials or persons of equivalent status under subsection (3) above on the basis of such a disclosure, their obligation to observe tax secrecy shall remain unaffected.
Section 30a
(rescinded)
Section 31
Disclosure of tax bases
(1) The revenue authorities shall be obliged to disclose to public-law entities, including religious communities which are public-law entities, tax bases, base amounts of non-personal taxes and other tax amounts for the purpose of assessing such levies connected with these tax bases, base amounts of non-personal taxes or other tax amounts. The obligation to disclose shall not apply insofar as this would involve a disproportionate amount of time and effort. Upon request, the revenue authorities may disclose to public-law entities the names and addresses of their members who are obliged, in principle, to pay levies within the meaning of the first sentence above as well as the duties assessed by the revenue authority with regard to the entity, insofar as knowledge of these data is necessary for the discharge of public tasks falling within the entity’s responsibility and insofar as the data subject has no overriding interests that merit protection.
(2) Revenue authorities shall be obliged to disclose data subjects’ data that are protected under section 30 to statutory social insurance providers, the Federal Employment Agency and the Artists’ Social Security Fund, insofar as knowledge of such data is necessary to determine insurance requirements or to assess contributions, including artists’ social security contributions, or insofar as the data subject submits an application for disclosure. This disclosure obligation shall not apply if carrying out such a disclosure would involve a disproportionate effort.
(3) The names and addresses of owners of real property which have become known through the administration of real property tax and which are protected under section 30 may be used by the authorities responsible for administering real property tax for the administration of other fiscal charges and for the discharge of other public tasks or may be disclosed by those authorities on request to the responsible courts, authorities or legal persons under public law, as long as the data subject has no overriding interests that merit protection.
Section 31a
Disclosure for the purpose of countering unlawful employment and the misappropriation of benefits
(1) The disclosure of a data subject’s data that are protected under section 30 shall be permissible insofar as such disclosure is necessary
1. to conduct criminal proceedings, administrative fine proceedings or any other court or administrative proceedings with the aim of
a) countering unlawful employment or undeclared work, or
b) deciding whether
aa) a licence under the Temporary Employment Act should be issued, withdrawn or revoked, or
bb) benefits paid from public funds should be approved, granted, recovered, refunded, continued to be granted or allowed to be retained,
or
2. to assert a claim for repayment of benefits paid from public funds.
(2) In the cases referred to in subsection (1) above, the revenue authorities shall be obliged to disclose to the competent body the facts required in each case. In the cases referred to in subsection (1) numbers 1(b) and 2 above, information shall also be disclosed upon application by the data subject. The obligation to disclose referred to in the first and second sentence of this subsection shall not apply insofar as this would involve a disproportionate amount of time and effort.
Section 31b
Disclosure for the purposes of countering money laundering and terrorist financing
(1) The disclosure, to the respective competent body, of a data subject’s data that are protected under section 30 shall be permissible, even in the absence of a request, insofar as such disclosure serves one of the following purposes:
1. conducting criminal proceedings for money laundering or terrorist financing in accordance with section 1(1) and (2) of the Money Laundering Act,
2. preventing, detecting and combating money laundering or terrorist financing in accordance with section 1(1) and (2) of the Money Laundering Act,
3. conducting administrative fine proceedings in accordance with section 56 of the Money Laundering Act against obligated parties under section 2(1) numbers 13 to 16 of the Money Laundering Act,
4. taking measures or issuing orders in accordance with section 51(2) of the Money Laundering Act against obligated parties under section 2(1) numbers 13 to 16 of the Money Laundering Act or
5. the performance of tasks by the Financial Intelligence Unit as specified in section 28(1) of the Money Laundering Act.
(2) Revenue authorities must report matters to the Financial Intelligence Unit without undue delay, and irrespective of the value involved, if there are facts indicating that
1. the assets connected to the reportable matter are the object of a crime under section 261 of the Criminal Code or
2. the assets are connected to terrorist financing.
Reports to the Financial Intelligence Unit shall be sent via electronic data transmission, using a secure method that guarantees the confidentiality and integrity of the data set. In exceptional cases, a report may be sent via regular mail if data transmission is disrupted. Section 45(3) and (4) of the Money Laundering Act shall apply accordingly.
(3) The revenue authorities shall notify the competent administrative authority, without delay, of facts indicating that
1. an obligated party under section 2(1) numbers 9 to 13 of the Money Laundering Act has committed or is committing an administrative offence under section 56 of the Money Laundering Act or
2. the conditions have been met to take measures or issue orders in accordance with section 51(2) of the Money Laundering Act against obligated parties under section 2(1) numbers 13 to 16 of the Money Laundering Act.
(4) Section 47(3) of the Money Laundering Act shall apply accordingly.
Section 31c
The processing of special categories of personal data for statistical purposes by revenue authorities
(1) Notwithstanding the provisions of Article 9(1) of Regulation (EU) 2016/679, revenue authorities shall be permitted to process special categories of personal data as described in Article 9(1) of Regulation (EU) 2016/679 for statistical purposes, even without the consent of the data subject, if such processing for statistical purposes is necessary and the interests of the controller in processing the data significantly override the data subject’s interests in not having the data processed. The controller shall provide for suitable and specific measures to safeguard the data subject’s interests; the second sentence of section 22(2) of the Federal Data Protection Act shall apply accordingly.
(2) The rights of data subjects laid down in Articles 15, 16, 18 and 21 of Regulation (EU) 2016/679 shall be restricted to the extent that (a) such rights are likely to render impossible, or to substantially impede, the achievement of these statistical purposes and (b) such restriction is necessary for the fulfilment of these statistical purposes.
(3) In addition to the measures specified in the second sentence of section 22(2) of the Federal Data Protection Act, special categories of personal data as described in Article 9(1) of Regulation (EU) 2016/679 that are processed for statistical purposes shall be pseudonymised or anonymised as soon as possible after the statistical purpose has been achieved, unless such pseudonymisation or anonymisation runs counter to the legitimate interests of the data subject. Until such pseudonymisation or anonymisation occurs, those data items that enable specific details about personal or material circumstances to be attributed to an identified or identifiable person shall be stored separately. Such data items may be merged with such specific details only insofar as this is necessary to achieve the statistical purpose.
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