Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
Fourth Chapter
Liability
Section 69
Liability of the representative
The persons referred to in sections 34 and 35 shall be liable where claims arising from the tax debtor-creditor relationship (section 37) are not determined or satisfied or not determined or satisfied in time due to a breach of the duties imposed on them, wilfully or through gross negligence, or where, as a result, tax rebates or refunds are paid in the absence of legal grounds. This liability shall also include any late-payment penalties payable as a result of the breach of duty.
Section 70
Liability of the person represented
(1) Where, in fulfilling their duties, the persons referred to in sections 34 and 35 evade taxes or recklessly understate taxes or are involved in tax evasion and, as a result, owe taxes or become liable, the persons represented, unless they are tax debtors, shall be liable for the taxes understated due to the crime and for the tax advantages wrongfully granted.
(2) Subsection (1) above shall not apply to crimes committed by legal representatives of individuals if the individual’s wealth has not increased as a result of the crime committed by the representative. The same shall apply where the persons represented carefully selected and supervised the person who evaded taxes or recklessly understated taxes.
Section 71
Liability of tax evaders and persons receiving, holding or selling goods obtained by tax evasion
Any person who evades taxes or receives, holds or sells goods obtained by tax evasion or participates in such an act shall be liable for the taxes understated, the tax advantages wrongfully granted, the interest due under section 235 and the interest due under section 233a insofar as the latter has been credited against the interest due on evaded taxes pursuant to section 235(4).
Section 72
Liability for breaches of the obligation on the authenticity of accounts
Whoever contravenes the provisions of section 154(3) wilfully or due to gross negligence shall be liable to the extent that this contravention is detrimental to the realisation of claims arising from the tax debtor-creditor relationship.
Section 72a
Third-party liability in connection with the transmission of data to revenue authorities
(1) Producers of programmes as defined in section 87c shall be liable if, due to a breach of their obligations under section 87c, data are processed incorrectly or incompletely and, as a result, taxes are understated or unwarranted tax benefits are obtained. Such liability shall be waived if the producer provides evidence that the breach of obligations was not due to gross negligence or intentional wrongdoing.
(2) Any person who, acting in their capacity as contractor (section 87d), uses programmes to process data as described in section 87c shall be liable if
1. as a result of incorrect or incomplete transmission, taxes are understated or unwarranted tax benefits are obtained or
2. he breaches his obligations under section 87(2) and, as a result of the data he transmits, taxes are understated or unwarranted tax benefits are obtained.
Such liability shall be waived if the contractor provides evidence that the incorrect or incomplete transmission of data or the breach of obligations under section 87(2) was not due to gross negligence or intentional wrongdoing.
(3) Subsections (1) and (2) shall not apply to recapitulative statements as defined in section 18a(1) of the VAT Act.
(4) Any person who must transmit data to the revenue authorities in accordance with section 93c and who, acting with intent or gross negligence,
1. transmits incorrect or incomplete data or
2. fails to transmit data in violation of his obligations
shall be liable for the forfeited tax.
Section 73
Liability in the case of fiscal unity
A controlled company shall be liable for such taxes payable by the controlling company for which their fiscal unity is of relevance with regard to tax purposes. Entitlements to the reimbursement of tax rebates shall be equivalent to these taxes.
Footnote 3: Organschaft, i.e., the German system under which a company with its own legal personality (Organgesellschaft) is controlled by another company (Organträger) and dependent upon the latter financially, economically and operationally. Both companies are treated as one for tax purposes.
Section 74
Liability of the owner of objects
(1) Where objects serving the purposes of an enterprise are not owned by the trader but by a person holding a substantial interest in the enterprise, the owner of the objects shall be liable with such objects for those taxes payable by the enterprise where tax liability is based on operation of the enterprise. However, this liability shall only extend to those taxes which became chargeable while the substantial interest existed. Entitlements to the reimbursement of tax rebates shall be equivalent to these taxes.
(2) Persons shall be deemed to hold a substantial interest in the enterprise if they directly or indirectly hold an interest of more than a quarter of the share or nominal capital or of the assets of the enterprise. Persons exercising a controlling influence on the enterprise and contributing by their behaviour to the non-payment of taxes due within the meaning of the first sentence of subsection (1) above shall also be deemed to hold a substantial interest.
Section 75
Liability of the acquirer of a business
(1) Where ownership of an enterprise or a business managed separately within an enterprise structure is transferred as a whole, the acquirer shall be liable for taxes where tax liability is based on operation of the enterprise, and for withholding taxes, provided that the taxes have arisen after the beginning of the last calendar year before the transfer and that they are assessed or declared before expiry of one year after registration of the business by the acquirer. Liability shall be limited to the assets acquired. Entitlements to the reimbursement of tax rebates shall be equivalent to taxes.
(2) Subsection (1) above shall not apply to acquisitions from an insolvency estate or to acquisitions in enforcement proceedings.
Section 76
Liability in rem
(1) Goods liable to excise, import or export duty shall serve as a guarantee for the taxes due on those goods (liability in rem), irrespective of any third-party rights.
(2) Unless otherwise stipulated, liability in rem shall arise for goods subject to excise, import or export duty upon their entry into the territory of application of this Code, for goods subject to excise duty also upon their production or manufacture.
(3) As long as the tax has not been paid, the revenue authority may seize the goods. Seizure of the goods may also be effected by prohibiting the person with custody of the goods from disposing of them.
(4) Liability in rem shall expire as soon as the tax debt expires. It shall also expire as soon as the seizure is lifted or the goods are released for home use with the consent of the revenue authority.
(5) The liability in rem shall not be enforced if the person with power to dispose of the goods has lost them, if the goods subject to excise duty are taken into a manufacturing business or if the goods subject to import or export duty are assigned a customs-approved treatment or use.
Section 77
Obligation to tolerate
(1) Whoever is legally obliged to pay a tax out of funds they manage shall to this extent be obliged to tolerate enforcement against these assets.
(2) The owner of real property shall tolerate execution against this property on account of a tax based on real property as a public charge. Whoever is registered as owner in the Land Register shall be deemed to be the owner as far as the revenue authority is concerned. The right of the unregistered owner to raise the objections against the public charge to which he is entitled shall remain unaffected.
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