Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
5th Subchapter
Legal and administrative assistance
Section 111
Administrative assistance obligations
(1) All courts and authorities shall be obliged to provide such administrative assistance as is necessary to execute the taxation procedure. Section 102 shall remain unaffected.
(2) It shall not be deemed administrative assistance when
1. authorities assist each other in the context of a relationship in which one is bound by the instructions of the other,
2. assistance consists in actions which already fall under the remit of the requested authority.
(3) This provision shall not apply to debt administrations, credit institutions and commercial enterprises of public-law entities.
(4) With respect to customs administration, the obligation to provide administrative assistance shall also apply to those enterprises serving public transport or the public movement of goods which have been specially appointed as auxiliary customs bodies by the Federal Ministry of Finance, and to the staff thereof.
(5) Sections 105 and 106 shall apply accordingly.
Section 112
Preconditions for and limitations to administrative assistance
(1) A revenue authority may request administrative assistance in particular when
1. for legal reasons, it cannot itself perform the official act,
2. for practical reasons, especially for lack of personnel or equipment needed to perform the official act, it cannot itself perform the official act,
3. to carry out its tasks, it requires knowledge of facts which are unknown to it and which it cannot itself establish,
4. to carry out its tasks, it requires documents or other evidence in the possession of the requested authority,
5. it could only perform the official act at substantially greater expense than the requested authority.
(2) The requested authority may not provide assistance when it is unable to do so for legal reasons.
(3) The requested authority need not provide assistance when
1. another authority can provide the same assistance with much greater ease or at much less expense,
2. it could only provide such assistance at disproportionately great expense,
3. taking into account the tasks of the requesting revenue authority, such assistance would, as a result of its scope, seriously endanger the requested authority’s capacity to meet its own duties.
(4) The requested authority may not refuse assistance on the grounds that it considers the request inappropriate for reasons other than those given in subsection (3) above, or that it considers the measures to be realised by the administrative assistance inappropriate.
(5) Where the requested authority does not consider itself obliged to provide assistance, it shall inform the requesting revenue authority accordingly. If the latter insists that administrative assistance be provided, the decision as to whether or not an obligation to furnish such assistance exists shall be taken by the responsible common supervisory authority or, where no such authority exists, the supervisory authority with subject-matter jurisdiction over the requested authority.
Section 113
Selecting an authority
Where there is more than one potential provider of administrative assistance, assistance shall where possible be requested of an authority of the lowest administrative level of the administrative branch to which the requesting revenue authority belongs.
Section 114
Implementation of administrative assistance
(1) The permissibility of the measure to be realised by administrative assistance shall be governed by the laws applying to the requesting revenue authority, the implementation of administrative assistance by the laws applying to the requested authority.
(2) The requesting revenue authority shall bear responsibility vis-à-vis the requested authority for the legality of the measure to be taken. The requested authority shall be responsible for implementing the administrative assistance.
Section 115
Costs of administrative assistance
(1) The requesting revenue authority shall not be required to pay the requested authority an administrative fee for the provision of assistance. Where, in individual cases, expenses exceed 25 euros, these shall be refunded to the requested authority upon request. Where authorities of the same legal entity assist each other, no expenses shall be reimbursed.
(2) Where in implementing administrative assistance the requested authority performs an official act for which a fee must be paid, it shall be entitled to any costs caused for this purpose by a third party (administrative fees, usage charges and expenses).
Section 116
Reporting tax crimes
(1) Courts and the authorities of the Federation, the Länder and municipal institutions of public administrations which are not revenue authorities must notify the Federal Central Tax Office or, to the extent known, the revenue authorities responsible for the criminal tax proceedings, of facts that have become known to them in the course of exercise of their office and that suggest that a tax crime has been committed. Unless it is clear that the revenue authorities responsible for the criminal tax proceedings have already been informed directly, the Federal Central Tax Office shall inform them of these facts. The revenue authorities responsible for the criminal tax proceedings, excluding the authorities of the federal customs administration, shall transmit the notification to the Federal Central Tax Office unless it is clear that the latter has already been informed directly.
(2) Section 105(2) shall apply accordingly.
Section 117
International legal and administrative assistance in tax matters
(1) The revenue authorities may avail themselves of international legal and administrative assistance subject to the provisions of German law.
(2) The revenue authorities may provide international legal and administrative assistance on the basis of nationally applicable international agreements, nationally applicable legal instruments of the European Union and the EU Mutual Assistance Act.
(3) Using due discretion, the revenue authorities may provide international legal and administrative assistance upon request in other cases where
1. reciprocity is assured,
2. the requesting state guarantees that the information and the documents supplied will be used only for the purposes of its taxation or criminal tax procedure (including procedures related to administrative offences) and that the information and the documents supplied will be disclosed only to such persons, authorities or courts as are concerned with the processing of the tax case or the prosecution of the tax crime;
3. the requesting state guarantees that it is prepared to avoid any double taxation on income, capital gains and assets by way of mutual agreement procedure through the appropriate adjustment of the tax base, and
4. compliance with the request is not detrimental to the sovereignty, security, public order or other essential interests of the Federation or its political subdivisions and there is no danger of the person concerned in Germany incurring damage incompatible with the purpose of the legal and administrative assistance in the event that a trade, industrial, commercial or professional secret or a business process which is to be communicated on the basis of the request is disclosed.
To the extent that international legal and administrative assistance pertains to taxes administered by Land revenue authorities, the Federal Ministry of Finance shall take a decision in mutual agreement with the competent highest authority of the Land concerned.
(4) When implementing legal and administrative assistance, the powers of the revenue authorities and the rights and obligations of the participants and other persons shall be based on the provisions applying to taxes as defined in section 1(1). Section 114 shall apply accordingly. Section 91 shall apply accordingly with regard to domestic participants where information and documents are transmitted; notwithstanding section 91(1), domestic participants shall invariably be consulted where legal and administrative assistance pertains to taxes administered by Land revenue authorities, unless VAT is concerned, an information exchange is taking place on the basis of the EU Mutual Assistance Act, or exceptional circumstances exist within the meaning of section 91(2) or (3).
(5) For the purposes of promoting international cooperation, the Federal Ministry of Finance shall be authorised, by way of ordinances issued with the consent of the Bundesrat, to enact international agreements on mutual legal and administrative assistance in customs matters if the obligations thus assumed do not go beyond the scope of the international legal and administrative assistance permissible under this Code.
Section 117a
Transmission of personal data to Member States of the European Union
(1) At the request of a public agency of a Member State of the European Union responsible for the prevention and prosecution of crimes, the offices of the revenue authorities charged with tax investigation may transmit personal data in connection with the remit stipulated in section 208 for the purposes of preventing crimes. The provisions on data transmission in the domestic context shall apply accordingly for the transmission of this data.
(2) Transmission of personal data pursuant to subsection (1) above shall only be permissible if the request contains at least the following details:
1. the name and address of the requesting authority,
2. description of the crime for the prevention of which the data are required,
3. description of the facts of the case on which the request is based,
4. designation of the purpose for which the data are sought,
5. the connection between the purpose for which the information or intelligence are sought and the person who is the subject of the information,
6. details about the identity of the person concerned insofar as the request relates to a known person, and
7. reasons for believing the relevant information and intelligence are available in Germany.
(3) The offices of the revenue authorities charged with tax investigation may also spontaneously transmit personal data within the meaning of subsection (1) above to a public agency of a Member State of the European Union responsible for the prevention and prosecution of crimes where, in the individual case, there is a risk of the commission of a crime within the meaning of Article 2(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18 July 2002, p. 1), most recently amended by Framework Decision 2009/299/JHA (OJ L 81, 27 February 2009, p. 24), and there are solid indications that the transmission of this personal data could contribute to preventing such a crime.
(4) The provisions on data transmission in the domestic context shall apply accordingly for the transmission of data pursuant to subsection (3) above. There shall be no data transmission insofar as, and with due regard to the specific public interest in the transmission of the data, the legitimate interests of the person concerned are overriding in the individual case. Legitimate interests shall also include the existence of an appropriate level of data protection in the receiving state. The legitimate interests of the person concerned may also be safeguarded by the receiving state or the receiving international or supranational agency guaranteeing, in the individual case, the protection of the transmitted data.
(5) There shall be no data transmission pursuant to subsections (1) and (3) above where
1. this would impair the essential security interests of the Federation or the Länder,
2. the transmission of data would contradict the principles contained in Article 6 of the Treaty on European Union,
3. the data to be transmitted are not held by the requested authority and can only be obtained by taking coercive measures, or
4. the transmission of the data would be disproportionate or the data are not required for the purposes for which they are to be transmitted.
(6) The data transmission pursuant to subsections (1) and (3) above may be refrained from where
1. the data to be transmitted are not held by the offices of the revenue authorities charged with tax investigation but can be obtained without the taking of coercive measures,
2. this would present a risk to the success of on-going investigations or to a person’s body, life or freedom, or
3. the act, for the prevention of which the data are to be transmitted, is punishable under German law by means of imprisonment for a maximum one year or less.
(7) The public agency of a Member State of the European Union responsible for the prevention and prosecution of crimes within the meaning of subsections (1) and (3) above shall be any agency appointed by this state pursuant to Article 2(a) of Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (OJ L 386 of 29 December 2006, p. 89, OJ L 75 of 15 March 2007, p. 26).
(8) Subsections (1) to (7) above shall also apply to the transmission of personal data to public agencies of a Schengen associated state responsible for the prevention and prosecution of crimes within the meaning of section 91(3) of the Act on International Judicial Assistance in Criminal Matters.
Section 117b
Use of data to be supplied pursuant to Framework Decision 2006/960/JHA
(1) Data which have been transmitted pursuant to Framework Agreement 2006/960/JHA to the offices of the revenue authorities charged with tax investigation may only be used for the purposes for which they were transmitted or to avert a present and substantial threat to public security. The data may only be used for other purposes or as evidence in judicial proceedings if the transmitting state has given its consent. The conditions set for the use of the data by the transmitting state are to be observed.
(2) The offices of the revenues authorities charged with tax investigation shall furnish information to the transmitting state, at that state’s request for the purposes of monitoring data protection, about how the transmitted data were used.
Section 117c
Implementation of nationally applicable international agreements to improve international tax compliance
(1) The Federal Ministry of Finance shall be authorised, for the purposes of fulfilling obligations under nationally applicable international agreements that serve to improve tax compliance by means of the systematic collection and transmission of relevant tax data, to adopt, by way of ordinances issued with the consent of the Bundesrat, rules on
1. the collection of the data required under these agreements by third parties who are specified in principle in these agreements,
2. the transmission of these data to the Federal Central Tax Office, using officially prescribed data sets sent via remote data transmission,
3. the forwarding of these data to the competent authorities of other contracting states and
4. the receipt of relevant data from other contracting states and the forwarding of such data to the competent Land revenue authority in accordance with section 88(3) and (4).
Ordinances issued in accordance with the first sentence above may grant the Federal Central Tax Office the right to analyse, for the purpose of fulfilling its legally assigned responsibilities, the data and reports it receives in accordance with section 9(1) and (2) of the FATCA Implementation Ordinance. This shall have no effect on analyses by competent Land revenue authorities of reports received in accordance with section 9(2) of the FATCA Implementation Ordinance.
(2) In cases where data are transmitted by the Federal Central Tax Office to the competent revenue authority of the other contracting state pursuant to an ordinance issued on the basis of the first sentence of subsection (1) above, no consultation of the participants shall be conducted.
(3) The Federal Central Tax Office shall be entitled to examine facts and circumstances that are of relevance for the fulfilment of obligations to collect and transmit data pursuant to an ordinance issued on the basis of subsection (1) above, or that require clarification, in relation to parties obliged to collect these data and transmit them to the Federal Central Tax Office. Articles 193 to 203 shall apply mutatis mutandis.
(4) The data collected by the Federal Central Tax Office on the basis of an ordinance pursuant to subsection (1) above or as part of an examination pursuant to subsection (3) above may be used only for the purposes specified in the underlying international agreements. Where country-by-country reports are transmitted by the Federal Central Tax Office in accordance with section 138a(7), first to third sentences, no consultation of the participants shall be conducted.
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