Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
2nd Subchapter
Exclusion and rejection of public officials and other persons
Section 82
Persons excluded
(1) The following persons may not act on behalf of a revenue authority in administrative proceedings:
1. whoever is himself a participant,
2. whoever is a relative (section 15) of a participant,
3. whoever by virtue of a law or authorisation represents a participant in general or in the specific administrative proceedings,
4. whoever is a relative (section 15) of a person who provides assistance in tax matters to a participant in the proceedings,
5. whoever is employed by a participant and receives remuneration from him, or is active on his board of management, supervisory board or similar body; this shall not apply to a person whose employing body is a participant,
6. whoever, outside his official capacity, has furnished an opinion or otherwise been active in the matter.
Anyone who may benefit or suffer a disadvantage directly as a result of the action or the decision shall be deemed equal to the participant. This shall not apply when the benefit or disadvantage is based only on the fact that someone belongs to an occupational group or segment of the population whose joint interests are affected by the matter.
(2) Whoever is excluded under subsection (1) above may undertake non-deferrable measures in cases of imminent danger.
(3) Where a member of a committee considers himself to be excluded, or where there is doubt as to whether the provisions of subsection (1) above apply, the chairman of the committee shall be informed. The committee shall decide on the matter of exclusion. The person concerned shall not participate in the decision. The excluded member may not attend further discussions or be present when decisions are taken.
Section 83
Fear of bias
(1) Where grounds exist to justify suspicions against the impartiality of the public official, or if a participant maintains that such grounds exist, the public official shall inform the head of the authority or the person appointed by him and shall at his request refrain from participating. Where the fear of bias relates to the head of the authority, the supervisory authority shall issue this order to the extent that the head of the authority does not refrain from participating of his own accord.
(2) Section 82(3) shall apply mutatis mutandis to members of a committee.
Section 84
Rejection of members of a committee
Any participant may reject a member of a committee participating in administrative proceedings who is not entitled to take part in the administrative proceedings (section 82) or against whom there is a fear of bias (section 83). A rejection made before the oral hearing shall be explained in writing or for record. The explanation shall not be permissible if the participant has attended the oral hearing without asserting the reason for rejection known to him. The decision on the rejection shall be governed by section 82(3), second to fourth sentences. The decision on the motion for rejection may only be contested jointly with the decision concluding the proceedings before the committee.
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