Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
II. Evidence through information and expert opinion
Section 93
Obligation of the participants and other persons to provide information
(1) The participants and other persons shall provide the revenue authority with the information needed to ascertain facts which are of significance for taxation. This shall also apply to associations without legal capacity, pools of assets, authorities and commercial enterprises of public-law entities. Persons other than the participants should be required to provide information only if clarification of the matter by the participants does not or is not likely to produce any results.
(1a) Revenue authorities may issue to persons other than the participants information requests pertaining to an as yet unknown quantity of facts and circumstances involving persons who are identifiable in principle but not yet known to the revenue authorities (batch information requests). The preconditions for issuing a batch information request are (a) there must be sufficient grounds for conducting an investigation and (b) other feasible fact-finding measures are unlikely to produce results. The third sentence of subsection (1) above shall not apply.
(2) Information requests shall specify which information is to be provided and whether the information is required for the taxation of the person obliged to provide information or for the taxation of other persons. Information requests shall be issued in writing if the person obliged to provide information so requests.
(3) Information shall be provided truthfully and to the best of the knowledge and belief of the person obliged to provide information. Persons obliged to provide information who are unable to do so from memory shall consult the accounts, records, business documents and other documentation available to them and shall where necessary take notes from such documentation.
(4) The person obliged to provide information may do so in writing, electronically, orally or by telephone. The revenue authority may require information to be provided in writing if this is expedient for the matter in question.
(5) The revenue authority may stipulate that the person obliged to provide information does so on official premises in the form of an oral statement. They shall be entitled to do so in particular if information in writing has been demanded but not provided or if information provided in writing has not served to clarify the matter. The first sentence of subsection (2) above shall apply accordingly.
(6) Upon application by the person obliged to provide information, a written record shall be prepared of the oral statement made on official premises. This record shall include the names of persons present, the place, the date and the essential content of the information. It should be signed by the public official to whom the oral statement is made and by the person obliged to provide information. A copy of the record shall be supplied to the participants.
(7) The automated retrieval of account information in accordance with section 93b shall be permissible only insofar as
1. the taxpayer applies for a tax assessment pursuant to section 32d(6) of the Income Tax Act, or
2. (rescinded)
and the retrieval in these cases is necessary for the assessment of income tax or is necessary
3. for determining income pursuant to sections 20 and 23(1) of the Income Tax Act in assessment periods up to and including 2008, or
4. for levying taxes regulated by federal law or for reclaiming tax refunds or tax rebates regulated by federal law or
4a. for identifying cases in which domestic taxpayers (as defined in the first sentence of section 138(2)) are authorised to dispose of, or are beneficial owners (as defined in the Money Laundering Act) of, an account held by a natural person, partnership, corporation, association or pool of assets whose residence, habitual abode, place of management, main establishment or registered office is located outside the jurisdiction of this code, or
4b. for determining tax bases in cases where section 208(1), first sentence, number 3 applies
or
5. the taxpayer consents.
In these cases, the revenue authority or, in cases where section 1(2) applies, the municipality may submit a request to the Federal Central Tax Office asking it to retrieve from credit institutions data items contained in the filing systems that are to be maintained under section 93b(1) and (1a); in cases where numbers 1 to 4b of the first sentence above apply, a request for retrieval may be made only if an information request issued to the taxpayer did not or is unlikely to produce results.
(8) Upon request, the Federal Central Tax Office shall provide information on the data specified in section 93b(1)
1. to the authorities responsible for administering
a) the basic allowance for jobseekers under Book II of the Social Code,
b) social assistance under Book XII of the Social Code,
c) educational and training assistance under the Federal Education and Training Assistance Act,
d) career advancement training assistance under the Upgrading Training Assistance Act and
e) housing benefit under the Housing Benefit Act
insofar as this is necessary to verify fulfilment of eligibility conditions and a previous information request issued to the parties concerned did not or is unlikely to produce results.
2. to the police authorities of the Federation and the Länder, insofar as this is necessary to avert a significant threat to public security, and
3. to Land authorities responsible for the protection of the constitution, insofar as this is necessary in order for such authorities to perform their functions and is expressly permitted by Land legislation.
In order to carry out enforcement, the authorities responsible for enforcement under the Federal Administrative Enforcement Act and the administrative enforcement acts of the Länder may submit a request to the Federal Central Tax Office asking it to retrieve from credit institutions the data specified in section 93b(1) if
1. the judgement debtor fails to comply with the obligation to file an asset disclosure or
2. the recovery of assets listed in the asset disclosure is unlikely to satisfy the claim that was the basis for demanding such asset disclosure.
Requests asking the Federal Central Tax Office to retrieve data specified in section 93b(1) for other purposes shall be permissible only to the extent that this is expressly permitted by federal law.
(9) Before a request for retrieval under subsections (7) or (8) above is submitted, the person concerned shall be instructed of the possibility that account data may be retrieved; this may also be done by including an explicit statement to this effect on official forms and in guidance notes. After the account data have been retrieved, the requesting party shall notify the person concerned that the retrieval has been conducted. Instructions under the first half-sentence of the first sentence above and notifications under the second sentence above shall not be provided insofar as the conditions specified in section 32b(1) apply or insofar as it is barred by law to inform the person concerned. Section 32c(5) shall apply accordingly. Unless otherwise required by law, the fourth sentence above shall apply in cases where subsection (8) applies. The first and second sentences above shall not apply to the cases referred to in subsection (8), first sentence, number 2 or 3 above or insofar as this is expressly stipulated by federal law.
(10) A request for retrieval under subsections (7) or (8) above and the result thereof shall be documented by the requesting party.
Section 93a
General obligation to disclose information
(1) To ensure taxation in accordance with section 85, the Federal Government may, by way of ordinances issued with the consent of the Bundesrat, require authorities, other public entities and public service broadcasters
1. to inform revenue authorities of the following:
a) the recipient of payments made, together with the legal basis and the amount and timing of such payments,
b) administrative acts that result in a denial or reduction of tax privileges for the persons affected or permit the persons affected to realise taxable income,
c) subsidies and similar support measures provided, and
d) indications of undeclared work, the unauthorised supply of temporary workers or the unauthorised employment of non-nationals;
2. to notify recipients under number 1a) above of the total amount of annual payments made and of the revenue authorities’ opinion regarding the tax liabilities thus incurred.
Ordinances may also specify the extent to which notifications can or must be transmitted in accordance with section 93c; in such cases, section 72a(4) shall not apply. The obligations of authorities, other public entities and public service broadcasters regarding notifications, information, reporting and mutual assistance, as stipulated in other provisions, shall remain unaffected.
(2) Debt administrations, credit institutions, commercial enterprises of legal persons under public law within the meaning of the Corporation Tax Act, public joint ventures without sovereign jurisdiction, professional chambers and insurance companies shall be exempt from the obligation to disclose information.
(3) Such ordinances shall define more precisely the entities providing the information, the obligation to notify the persons concerned, the information to be provided and the revenue authorities responsible for receiving the communication and shall stipulate the scope, timing and procedure of the communication. Such ordinances may provide for exceptions to the obligation to disclose information, in particular in cases of minor tax importance.
Section 93b
Automated retrieval of account information
(1) The filing systems that credit institutions are required to maintain under section 24c(1) of the Banking Act must also be maintained for retrievals in accordance with section 93(7) and (8).
(1a) For the purpose of responding to requests for the retrieval of account data under section 93(7) or (8), credit institutions must store the data specified in section 24c(1) of the Banking Act and, for each person with power of disposal and each beneficial owner as defined in the Money Laundering Act, the address and the data specified in section 154(2a). Section 154(2d) and Article 97 paragraph 26(5) numbers 3 and 4 of the Introductory Act to the Fiscal Code shall remain unaffected.
(2) Upon request in cases where section 93(7) and (8) apply, the Federal Central Tax Office may, using automated procedures, retrieve from credit institutions data items contained in the filing systems that are to be maintained under subsections (1) and (1a) above and transmit such data to the requesting party. The Federal Central Tax Office may disclose the identification number (as defined in section 139b) of a person with power of disposal or a beneficial owner only to revenue authorities.
Section 93c
Transmission of data by third parties
(1) If legal provisions stipulate that a taxpayer’s tax data are to be transmitted electronically to revenue authorities by a third party (notifying entity), the following shall apply, subject to any contrary provisions contained in tax legislation:
1. Following the end of the tax period, the notifying entity must transmit the data, using officially prescribed data sets and officially designated interfaces via remote transmission, by the last day of February in the following year; if the requirement to submit data is related to a specific tax date, the data must be transmitted by the end of the second calendar month following the end of the month in which the tax date fell.
2. The data set must contain the following information:
a) the name, address, reference code and contact details of the notifying entity, as well as its identifier pursuant to sections 139a to 139c or, if such identifier has not been issued, its tax number;
b) if the notifying entity has commissioned a contractor as described in section 87d to transmit the data, then, in addition to the information under number 2a above, the contractor’s name, address, contact details and identifier pursuant to sections 139a to 139c or, if such identifier has not been issued, tax number must be provided;
c) the taxpayer’s first and last name, date of birth, address and identification number under section 139b;
d) if the taxpayer is not a natural person, then its name or trade name, address and business identification number under 139c or, if such identification number has not been issued, tax number must be provided;
e) the date and time when the data set was created or another event that allows the chronological order to be identified, the type of notification being submitted, the relevant tax period or tax date, and the indication as to whether the transmitted data set constitutes a first-time, corrected or cancelling notification.
3. The notifying entity shall let the taxpayer know which of his tax-relevant data it has transmitted or will transmit to the revenue authorities. This information shall be furnished in a suitable manner – electronically, if so approved by the taxpayer – and within a reasonable period of time. Obligations to furnish information pursuant to other legislation shall remain unaffected.
4. The notifying entity shall record the transmitted data and retain these records, together with the documents used as the basis of the data transmission, until the expiration of the seventh calendar year following the tax period or tax date; sections 146 and 147(2), (5) and (6) shall apply accordingly.
(2) If, after the expiration of the seventh calendar year following the tax period or tax date, the notifying entity discovers that the submission of certain data was obligatory, it should not transmit that data.
(3) If, prior to the expiration of the seventh calendar year following the tax period or tax date, the notifying entity discovers that
1. the data transmitted in accordance with subsection (1) above were incorrect or
2. a data set was transmitted even though it did not fulfil the criteria for transmission,
then the notifying entity shall correct or cancel the transmission without delay by submitting another data set, subject to any contrary provisions contained in tax legislation. Subsection (1) numbers 2 to 4 above shall apply accordingly.
(4) The revenue authority with jurisdiction pursuant to tax legislation may review whether the notifying entity has
1. satisfied its obligations under subsection (1) numbers 1, 2 and 4 and subsection (3) above and
2. determined the content of the data set in accordance with the provisions of the relevant tax legislation.
The rights and obligations of the revenue authority responsible for assessing the taxpayer’s taxes, as such rights and obligations pertain to determining the facts of a case, shall remain unaffected.
(5) Unless otherwise required by law, the revenue authority responsible for receiving the data pursuant to applicable tax legislation shall also be responsible for applying subsection (4) above and section 72a(4).
(6) Revenue authorities may process the data referred to in subsections (1) and (3) above and transmitted to them by notifying entities if such processing is necessary in order for the revenue authorities to fulfil the functions incumbent upon them or to exercise the official authority with which they have been vested.
(7) Unless otherwise required by law, taxpayer data obtained and stored by the notifying entity exclusively for the purpose of transmitting them to revenue authorities may be used by the notifying entity solely for that purpose.
(8) Subsections (1) to (7) above shall not apply to
1. obligations to transmit data pursuant to section 51a(2c) or chapter XI of the Income Tax Act,
2. obligations to transmit data to the customs authorities,
3. transmissions of data between revenue authorities and
4. obligations to transmit data to foreign public authorities.
Section 93d
Authorisation to issue ordinances
The Federal Ministry of Finance may stipulate, by way of ordinances issued with the consent of the Bundesrat, that data as described in section 93c shall be collected for purposes of testing prior to the initial transmission, insofar as this is necessary in order to develop, review or modify automated procedures. In such cases, the data may be processed exclusively for purposes of testing and must be deleted within one year after the conclusion of such testing.
Section 94
Examination under oath
(1) Where the revenue authority considers it advisable in view of the importance of the evidence, or in order to ensure that the truth is told, that a person other than one of the participants swear an oath, the revenue authority may issue a request for examination under oath to the fiscal court within whose jurisdiction the person who is to take the oath resides or has his abode. Where the person who is to take the oath does not reside or has no abode within the jurisdiction of a fiscal court or of an especially established senate, the request for examination under oath may also be made to the local court responsible.
(2) The revenue authority shall specify the subject matter of the examination and the names and addresses of the participants in its request. The court shall inform the participants and the requesting revenue authority of the relevant dates. The participants and the requesting revenue authority shall have the right to ask questions during the examination.
(3) The court shall decide as to the lawfulness of a refusal to give evidence or to take the oath.
Section 95
Sworn statement
(1) The revenue authority may require the participant to make a sworn statement to confirm the correctness of his account. A sworn statement should only be required where other means of establishing the truth are not available, have failed to produce any results or would require a disproportionate effort. A sworn statement may not be required of persons who are incapable of taking an oath pursuant to section 393 of the Code of Civil Procedure.
(2) The sworn statement shall be recorded in writing by the revenue authority. Persons authorised to make such a recording shall be the head of the authority, his permanent deputy and members of the civil service qualified to exercise the functions of a judge or who fulfil the requirements of section 110, first sentence, of the German Judiciary Act. The head of the authority or his permanent deputy may authorise in writing other members of the civil service to act generally in this capacity or for individual cases.
(3) The details, the correctness of which is to be confirmed, shall be recorded in writing and notified to the participant at least one week prior to the recording of the statement. The sworn statement shall consist in the participant’s repeating the facts previously stated by him and making the following declaration: “I do solemnly affirm that to the best of my knowledge I have told nothing but the truth and have concealed nothing.” Authorised representatives and advisers of the participant shall be entitled take part in the recording of the sworn statement.
(4) Prior to the recording of the sworn statement, the participant shall be instructed of the meaning of the sworn statement and the consequences under criminal law of making an incorrect or incomplete statement. The fact that this has been done shall be included in the written record.
(5) The written record shall in addition contain the names of those present and the place and date of the record. The written record shall be read to the participant making the statement for his approval, or, upon request, shall be made available for him to inspect. The fact that this has been done shall be recorded and signed by the participant. The written record shall then be signed by the public official who received the sworn statement and by the recording clerk.
(6) Sworn statements may not be enforced pursuant to section 328 below.
Section 96
Enlistment of experts
(1) The revenue authority shall determine whether an expert shall be enlisted. Except in cases of imminent danger, the revenue authority shall inform the participants beforehand of who it intends to enlist as expert.
(2) An expert may be rejected by the participants for fear of bias where grounds exist to justify doubts as to his impartiality, or where it is feared that his work may infringe trade or business secrets or be prejudicial to the business activities of a participant. Notification of the rejection shall be asserted to the revenue authority without undue delay after the appointment of the expert has been communicated, or, at the latest, within two weeks and shall be accompanied by substantiation of the reasons for rejection. After that date, rejection shall only be permissible where it can be established credibly that the grounds for rejection could not have been asserted previously. The revenue authority which has appointed or intends to appoint the expert shall decide on the rejection. The motion for rejection shall not have the effect of delaying proceedings.
(3) The person appointed as an expert shall comply with the appointment if he has been publicly appointed to render opinions of the required kind, or if he publicly and commercially practices the science, art, or trade, the knowledge of which is a prerequisite for rendering an opinion, or if he has been publicly appointed or authorised to practice such profession. Whoever has informed the revenue authority of his willingness to furnish an opinion shall also be obliged to do so.
(4) Experts may refuse to furnish an opinion for fear of bias, indicating the reasons.
(5) Members of the civil service shall be called in as experts only if they have received the authorisation required under civil service law.
(6) Experts shall be alerted to the provisions on the protection of tax secrecy.
(7) Opinions shall routinely be furnished in writing. Oral opinions may also be permitted. Expert opinions may only be required to be supported by an administration of oath if the revenue authority considers this advisable in view of the importance of the expert opinion. Where the expert has previously taken an oath regarding the rendering of opinions of the required kind, a reference to the oath previously taken shall be sufficient; such reference may also be made in a written opinion. Otherwise, section 94 shall apply mutatis mutandis to the administration of the oath.
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