Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
Second Chapter
Tax debtor-creditor relationship
Section 37
Claims arising from the tax debtor-creditor relationship
(1) Claims arising from the tax debtor-creditor relationship shall be the tax claim, the tax rebate claim, the liability claim, the claim to an ancillary tax payment, the refund claim pursuant to subsection (2) below and the tax refund claims set out in individual tax laws.
(2) Where a tax, a tax rebate, a liability amount or an ancillary tax payment was paid or repaid in the absence of legal grounds, the person on whose account the payment was made shall be entitled to a refund from the recipient of the amount paid or repaid. This shall also apply where the legal grounds for the payment or repayment are subsequently abolished. In the case of cession, pledging or seizure, the claim may also be asserted against the person ceding, the pledger or the execution debtor.
Footnote 2: Steuerschuldverhältnis, i.e., the legal relationship between the person owing the tax and the entity to which it accrues (state).
Section 38
Arising of claims from the tax debtor-creditor relationship
Claims shall arise from the tax debtor-creditor relationship as soon as the matter to which the law attaches liability for payment has occurred.
Section 39
Attribution
(1) Assets shall be attributable to their owner.
(2) Notwithstanding the provisions of subsection (1) above, the following provisions shall apply:
1. Where a person other than the owner exercises effective control over an asset in such a way that he can, as a rule, economically exclude the owner from affecting the asset during the normal period of its useful life, the asset shall be attributable to this person. In the case of fiduciary relationships, assets shall be attributable to the beneficiary, in the case of transferred ownerships for security purposes to the security provider, and in the case of proprietary possessions to the proprietary possessor.
2. Assets to which several persons are jointly entitled shall be attributable proportionally to the participants insofar as taxation requires separate attribution.
Section 40
Actions contrary to law or public policy
It shall be immaterial for taxation when an action that is completely or partly taxable violates a statutory regulation or prohibition or is contrary to public policy.
Section 41
Invalid legal transactions
(1) Where a legal transaction is or becomes invalid this shall be immaterial for taxation to the extent that and as long as the persons involved nevertheless allow the economic outcome of this legal transaction to occur and to remain. This shall not apply where the tax laws provide otherwise.
(2) Fictitious transactions and actions shall be immaterial for taxation. Where a fictitious transaction conceals another legal transaction, the concealed legal transaction shall be decisive for taxation.
Section 42
Abuse of tax planning schemes
(1) It shall not be possible to circumvent tax legislation by abusing legal options for tax planning schemes. Where the element of an individual tax law’s provision to prevent circumventions of tax has been fulfilled, the legal consequences shall be determined pursuant to that provision. Where this is not the case, the tax claim shall in the event of an abuse within the meaning of subsection (2) below arise in the same manner as it arises through the use of legal options appropriate to the economic transactions concerned.
(2) An abuse shall be deemed to exist where an inappropriate legal option is selected which, in comparison with an appropriate option, leads to tax advantages unintended by law for the taxpayer or a third party. This shall not apply where the taxpayer provides evidence of non-tax reasons for the selected option which are relevant when viewed from an overall perspective.
Section 43
Tax debtor, creditor of a tax rebate
Tax legislation shall stipulate the tax debtor or creditor of a tax rebate. It shall also stipulate whether a third party is to pay the tax on behalf of the tax debtor.
Section 44
Joint and several debtors
(1) Persons who concurrently owe or are liable for the same obligation arising from the tax debtor-creditor relationship or who must be assessed jointly shall be joint and several debtors. Unless otherwise stipulated, each joint and several debtor shall owe the entire obligation.
(2) Fulfilment by a joint and several debtor shall also take effect for the other debtors. The same shall apply to the set-off and any securities provided. Other facts shall only take effect for and against the joint and several debtor personally affected by them. The provisions of sections 268 to 280 with regard to the limitation of enforcement in the case of joint assessment shall remain unaffected.
Section 45
Universal succession
(1) In the case of universal succession the debts and receivables arising from the tax debtor-creditor relationship shall pass to the legal successor. However, in the case of succession by inheritance this shall not apply to coercive fines.
(2) Heirs shall be liable for debts payable from the estate pursuant to the provisions of civil law with regard to the heir’s liability for obligations of the estate. Provisions creating a tax liability of the heirs shall remain unaffected.
Section 46
Cession, pledging, seizure
(1) Entitlements to the refund of taxes, liability amounts, ancillary tax payments and tax rebates may be ceded, pledged and seized.
(2) However, the act of cession shall take effect only once the creditor declares it after the claim has arisen to the competent revenue authority in the form set out in subsection (3) below.
(3) The act of cession shall be notified to the competent revenue authority on an officially prescribed form, indicating the person ceding, the beneficiary of cession, the nature and amount of the entitlement ceded and the reason for cession. The notification shall be signed by the person ceding and the beneficiary of cession.
(4) The commercial acquisition of claims to refunds or rebates for the purpose of collection or other liquidation for own account shall not be permissible. This shall not apply in the case of cession for security purposes. Only enterprises authorised to conduct bank business shall be entitled to commercially acquire or collect claims ceded for security purposes.
(5) Where the act of cession has been notified to the revenue authority, the person ceding and the beneficiary of cession shall be obliged to accept the validity of the notified cession in relation to the revenue authority even if such cession does not occur or is ineffective or is void due to contravention of subsection (4) above.
(6) An attachment and transfer order or an attachment and sequestration order may not be issued before the claim has arisen. Any attachment and transfer orders or attachment and sequestration orders obtained in breach of this prohibition shall be void. The provisions of subsections (2) to (5) above shall apply mutatis mutandis to pledging.
(7) In the case of attachments of claims to refunds or rebates, the revenue authority which decided or must decide on the claim shall be deemed to be the third party debtor within the meaning of sections 829 and 845 of the Code of Civil Procedure.
Section 47
Expiration
Claims arising from the tax debtor-creditor relationship shall expire, in particular, through payment (sections 224, 224a and 225), set-off (section 226), remission (sections 163 and 227), termination of a limitation period (sections 169 to 171 and 228 to 232) and due to fulfilment of the condition where claims are subject to a condition subsequent.
Section 48
Payment by third parties, liability of third parties
(1) Payments to the revenue authority arising from the tax debtor-creditor relationship may also be effected by third parties.
(2) Third parties may contractually agree to guarantee payments within the meaning of subsection (1) above.
Section 49
Missing persons
When a person is missing and presumed dead, the date at the close of which the decision on the declaration of death of the missing person becomes final and binding shall be deemed the date of death for taxation purposes.
Section 50
Expiration and unconditionality of excise duty, transfer of the conditional excise duty debt
(1) Where a tax privilege is granted pursuant to excise duty laws and subject to the condition that goods liable to excise duty must be used for a special purpose, the duty shall expire completely or partly in accordance with the relief as soon as the condition is fulfilled or where the goods perish without the tax having previously become unconditional.
(2) The conditional tax debt shall be transferred to the eligible acquirer if the goods are passed on to him for the intended purpose by the tax debtor before the condition has been fulfilled.
(3) The duty shall become unconditional
1. where the goods are used contrary to the intended purpose or cannot be used anymore for this purpose. Where it is impossible to determine the whereabouts of the goods, they shall be considered as not having been used for the intended purpose, unless the beneficiary provides evidence to the contrary,
2. in other cases stipulated by law.
Leave a Reply