Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
Third Part
General rules of procedure
First Chapter
Procedural principles
1st Subchapter
Participation in the proceedings
Section 78
Participants
Participants shall be
1. those making and opposing an application,
2. those to whom the revenue authority intends to direct or has directed the administrative act,
3. those with whom the revenue authority intends to conclude or has concluded a contract under public law.
Section 79
Capacity to act
(1) The following shall be capable of acting in administrative proceedings:
1. natural persons capable of contracting under civil law,
2. natural persons whose capacity to contract is limited under civil law, to the extent that they are recognised with regard to the subject matter of the proceedings as being capable of contracting under civil law or capable of acting under public law,
3. legal persons, associations and pools of assets represented by their legal representatives or specially appointed individuals,
4. authorities represented by their heads, or representatives or persons appointed by them.
(2) Where there is a reservation of consent pursuant to section 1903 of the Civil Code regarding the subject matter of the proceedings, a person with capacity to contract under the care of a custodian shall be deemed capable of acting in administrative proceedings only insofar as he may act, under the provisions of civil law, without the consent of the custodian, or he is recognised as being capable of acting under the provisions of public law.
(3) Sections 53 and 55 of the Code of Civil Procedure shall apply accordingly.
Section 80
Authorised representatives and advisers
(1) A participant may authorise another person to represent him. The authorised representative shall have the power to take all actions related to administrative proceedings except where the terms of the authorisation indicate otherwise; the authorised representative shall not have the power to receive tax refunds or tax rebates. The revocation of an authorisation shall not take effect with the revenue authorities until they receive such revocation; the same shall apply to the modification of an authorisation.
(2) There shall be a presumption that the persons and associations described in section 3 and section 4 number 11 of the Tax Consultancy Act, who act on behalf of taxpayers, are properly authorised. For the retrieval of data that pertain to the person who granted the authorisation (hereinafter the “principal”) and that are stored at a Land revenue authority, proper authorisation shall be presumed only in accordance with the provisions of section 80a(2) and (3).
(3) Revenue authorities may demand proof of authorisation without cause.
(4) The death of the principal, a change in the principal’s capacity to act or a change in the principal’s legal representation shall not nullify the authorisation. However, when acting in administrative proceedings on behalf of the legal successor, the authorised representative shall upon request furnish proof of the successor’s authorisation.
(5) If a person is appointed to act as authorised representative in proceedings, he shall be the contact person for the revenue authorities. The revenue authorities may contact the actual participant insofar as the latter is obliged to cooperate. If the revenue authorities do contact the participant, the authorised representative is to be notified accordingly. Section 122(1), third and fourth sentences, shall apply with respect to the disclosure of administrative acts.
(6) A participant may bring an adviser to negotiations and discussions. Statements by the adviser shall be deemed to have been made by the participant unless the latter states his disagreement without undue delay.
(7) If an authorised representative provides professional assistance in tax matters without having the authority to do so, he shall be barred from all pending and future administrative proceedings that pertain to the principal and that fall under the jurisdiction of the revenue authority. If an authorised representative is so barred, both he and the principal shall be notified accordingly. The revenue authority shall have the power to notify other revenue authorities that the authorised representative has been barred.
(8) An authorised representative may be barred from making a written, electronic or oral submission insofar as he is unqualified to do so. This shall not apply to the natural persons specified in section 3 number 1, section 4 numbers 1 and 2 and section 23(3) of the Tax Consultancy Act or to natural persons who work for an agricultural accountancy office (Landwirtschaftliche Buchstelle) and who are authorised under section 44 of the Tax Consultancy Act to hold the professional title of “agricultural accountancy officer”. If an authorised representative is so barred, both he and the principal shall be notified accordingly.
(9) Advisers who provide professional assistance in tax matters without the authority to do so shall be barred from making oral submissions. Furthermore, they may be barred from making oral submissions if they are incapable of making or unwilling to make an appropriate submission; the second and third sentences of subsection (8) above shall apply accordingly.
(10) Any actions that authorised representatives or advisers take in administrative proceedings after being notified that they have been barred shall have no effect.
Section 80a
Electronic transmission to Land revenue authorities of data contained in authorisations granting powers of representation
(1) Data contained in authorisations granting powers of representation in tax proceedings and submitted using officially prescribed forms may be transmitted, using officially prescribed data sets and via officially designated interfaces, to Land revenue authorities. The data set shall also state whether the principal has empowered the authorised representative to receive administrative acts on the principal’s behalf or to retrieve data stored by the revenue authorities and pertaining to the principal. The transmitted data must be commensurate with the authorisation granting powers of representation. If a principal revokes or modifies an authorisation that has been transmitted in accordance with the first sentence above, the authorised representative must notify the Land revenue authorities accordingly, without delay, using an officially prescribed data set.
(2) If the data contained in the authorisation are transmitted in accordance with subsection (1) above by an authorised representative who is licensed to provide professional assistance in tax matters in accordance with section 3 of the Tax Consultancy Act, it shall be presumed that powers of representation have been granted in the scope reported, under the condition that the competent chamber confirms that such data are transmitted only by such authorised representatives who have the authority to provide professional assistance in tax matters. In such cases, the chamber with jurisdiction over the authorised representative shall also notify the Land revenue authorities without delay, using an officially prescribed data set, if that person is no longer licensed.
(3) Subsection (2) above shall apply accordingly to data contained in an authorisation that are transmitted by an approved wages tax assistance association (Lohnsteuerhilfeverein) as defined in section 4 number 11 of the Tax Consultancy Act, as long as the competent supervisory body, using an automated procedure, confirms that the association is approved to provide assistance in tax matters.
Section 81
Official appointment of a representative
(1) If no representative has been appointed, a custodianship court – and in the case of an underage participant, a family court – shall, at the request of the revenue authority, appoint a suitable representative
1. for a participant whose identity is unknown,
2. for an absent participant whose abode is unknown or who is prevented from looking after his affairs,
3. for participants without abode in
a) Germany,
b) another Member State of the European Union, or
c) another state where the Agreement on the European Economic Area applies,
if such participants fail to comply with the revenue authority’s request to appoint a representative by the stipulated deadline,
4. for a participant who, as a result of mental illness or physical, mental or emotional disability, is not capable of taking part personally in the administrative process,
5. with respect to ownerless items to which the proceedings refer, in order to protect the rights and obligations arising in relation to such items.
(2) Competency over the appointment of the representative shall lie with the custodianship court in the cases referred to in subsection (1) number 4 above and, in the case of a participant not of full age, with the family court, in whose district the participant has his habitual abode (section 272(1) number 2 of the Act on the Procedure in Family Matters and in Matters of Non-Contentious Jurisdiction); in all other respects, the competent court shall be that in whose district the revenue authority making the request is located.
(3) The representative shall be entitled to claim from the legal entity of the revenue authority requesting his appointment a reasonable remuneration and refund of his cash outlay. The revenue authority may require the person represented to refund its expenses. It shall determine the amount of remuneration and ascertain the amount of expenditure and costs.
(4) In the cases referred to in subsection (1) number 4 above, the appointment and office of representative shall be governed by the provisions on custody; in all other respects, the provisions on tutelage shall apply accordingly.
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