Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
Third Chapter
Provision of collateral
Section 241
Nature of collateral
(1) Whoever is required under the tax laws to provide collateral may do so:
1. by depositing with the competent revenue authority means of payment in circulation in the territory of application of this Code,
2. by pledging the securities named in subsection (2) below and which are entrusted for custody by the person obliged to provide the collateral to the Bundesbank or a credit institution which is licensed to operate a security deposit business, provided that no other rights take priority over the pledgee’s right. The liability of securities for amounts owing to the custodian for their custody and administration shall remain unaffected. The pledging of securities shall be deemed equivalent to the pledging of shares in a collective securities holding pursuant to section 6 of the Securities Deposit Act as published in the revised version in the Federal Law Gazette, Part III, number 4130-1, as amended by Article 1 of the Act of 17 July 1985 (Federal Law Gazette I, p. 1507),
3. by pledging savings, accompanied by the surrender of the savings bank book, in a credit institution which is licensed to operate a deposit-taking business within the territory of application of this Code, provided that no other rights take priority over the pledgee’s right,
4. by pledging receivables which are entered in a debt register of the Federation, or a special fund of the Federation or a Land, provided that no other rights take priority over the pledgee’s right,
5. by creating
a) first mortgages, land charges or annuity charges on real property or hereditary building rights which are situated within the territory of application of this Code,
b) first maritime mortgages on ships, ships under construction or floating docks which are entered in a register of ships or ship construction register kept within the territory of application of this Code,
6. by pledging receivables for which a first ordinary mortgage on real property or hereditary building rights situated within the territory of application of this Code exists, or by pledging first Land charges or annuity charges on real property or hereditary building rights situated within the territory of application of this Code, where no priority rights to these receivables, Land charges or annuity charges exist,
7. by way of debt commitment, guarantee or obligations under bills of exchange provided by a suitable tax guarantor (section 244).
(2) Securities within the meaning of subsection (1) number 2 above shall be
1. bonds issued by the Federation, a special fund of the Federation, a Land, a municipality or an association of municipalities,
2. bonds of international facilities to which the Federation has transferred sovereign rights, where they are licensed to trade on official bourses within the territory of application of this Code,
3. bonds issued by the Deutsche Genossenschaftsbank, the Deutsche Siedlungs- und Landesrentenbank, the Deutsche Ausgleichsbank, the Kreditanstalt für Wiederaufbau and the Landwirtschaftliche Rentenbank,
4. Pfandbriefs, municipal bonds and related bonds,
5. Bonds, the interest and redemption of which are guaranteed by the Federation or by a Land.
(3) A bonded warehouse of taxable goods shall be deemed to be adequate collateral for the tax imposed thereon.
Section 242
The effect of depositing means of payment
Means of payment which are deposited pursuant to section 241(1) number 1 shall become the property of the political subdivision to which the revenue authority with which they were deposited belongs. No interest shall be charged on the claim for repayment. Upon deposit, the political subdivision whose claim is to be secured by the deposit shall acquire a lien on the claim to reimbursement of the deposited means of payment.
Section 243
Pledging securities
The provision of collateral by pledging securities pursuant to section 241(1) number 2 shall be permissible only where the custodian assumes responsibility for guaranteeing the securities’ marketability. Assuming this responsibility shall include liability for ensuring that
1. the right of reclaim of the depositor is not restricted by judicial bans and confiscation,
2. that the entrusted securities are not registered as stolen or lost in the collective lists of called-up securities and are neither subject to payment blocks nor have been called in for cancellation or cancelled.
3. that the securities are registered to the bearer, or, in the event that they are non-negotiable, bear a blank endorsement and are otherwise not blocked, and that the interest coupons and the renewal coupons are enclosed with the securities.
Section 244
Suitable tax guarantors
(1) Debt commitments and guarantees pursuant to the Civil Code as well as obligations under bills of exchange set out in Articles 28 or 78 of the Bills of Exchange Act shall be deemed suitable as collateral only where these have been provided or entered into by persons who
1. possess sufficient assets to cover the extent of the collateral to be provided, and
2. have their general or an agreed jurisdiction within the territory of application of this Code.
Guarantees shall include the waiver of the defence of unexhausted remedies pursuant to section 771 of the Civil Code. Debt commitments and guarantee declarations shall be issued in writing; electronic versions shall not be permitted. The guarantor and the secured party may not provide reciprocal collateral for each other, nor may they be economically related. The Central Customs Authority shall decide on the acceptance of guarantee declarations in procedures pursuant to the ATA Convention of 6 December 1961 (Federal Law Gazette II 1965, p. 948) and the TIR Convention of 14 November 1975 (Federal Law Gazette II 1979, p. 445), as amended. The Central Customs Authority shall decide on the acceptance of declarations on individual guarantees in the form of guarantee vouchers pursuant to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) 2913/92 establishing the Community Customs Code (OJ L 253, p. 1) and the Convention of 20 May 1987 on a common transit procedure (OJ L 226, p. 2), as amended.
(2) The Central Customs Authority may authorise credit institutions and insurance companies providing collateral for others on a commercial basis to act in general as tax guarantor where they are licensed to operate within the territory of application of this Code. A maximum amount (guarantee amount) shall be set when issuing authorisation. The total amount of liabilities assumed by the tax guarantor from debt commitments, guarantees and obligations under bills of exchange vis-à-vis the revenue administration may not exceed the guarantee amount.
(3) The Federal Ministry of Finance shall be authorised to issue ordinances with the consent of the Bundesrat that delegate the powers under subsection (1), sixth sentence, and section (2) to one or more main customs offices.
Section 245
Other items as collateral
The revenue authority may at its own discretion accept as collateral items other than those described in section 241. Preference shall be given to assets which offer enhanced security or which upon the onset of even extraordinary circumstances can be realised without considerable difficulty and within a suitable timeframe.
Section 246
Acceptance value
The revenue authority shall determine at its own discretion the values at which objects may be accepted as collateral. However, the acceptance value may not exceed the expected proceeds of realisation minus the costs of realisation. It may not be below the values named in section 234(3), section 236 and section 237, first sentence, of the Civil Code for objects described in section 241(1) numbers 2 and 4 and for movable items which are accepted as collateral pursuant to section 245.
Section 247
The exchange of collateral
Whoever has provided collateral pursuant to sections 241 to 245 shall be entitled to replace the collateral or part of the collateral with other suitable collateral pursuant to sections 241 to 244.
Section 248
Obligation to provide additional collateral
Collateral shall be supplemented, or other collateral provided, where collateral already provided becomes inadequate.
Leave a Reply