Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
2nd Subchapter
Apportionment of a joint and several obligation
Section 268
General
Where persons are joint and several debtors because they have been jointly assessed for an income tax or capital tax, each of them may apply for enforcement of this tax to be limited respectively to the amount resulting in accordance with sections 269 to 278 where taxes are apportioned.
Section 269
Application
(1) The application shall be submitted in written or electronic form to, or lodged orally at, the tax office that is responsible for the taxation of income or capital at the time the application is submitted.
(2) The application may be made at the earliest following notification of the demand for payment. An application shall be no longer permissible once tax arrears have been paid in full. The application shall contain all the information required to apportion the tax insofar as this information is not contained in the tax return.
Section 270
General apportionment formula
Tax arrears shall be apportioned in proportion to the amounts which would result from individual assessment in accordance with section 26a of the Income Tax Act and sections 271 to 276. The actual and legal findings used for the tax assessment in the case of joint assessment shall be decisive insofar as the application of the provisions on individual assessment does not lead to deviations.
Section 271
Apportionment formula for capital tax
Capital tax shall be apportioned as follows:
1. Subject to the deviations in numbers 2 and 3 below, the provisions of the Valuation Act and the Capital Tax Act as used as the basis for joint assessment shall be assumed in calculating the assets and the capital tax of the individual joint and several debtor.
2. A spouse’s or civil partner’s assets, which in the case of joint assessment were attributed to the other spouse or civil partner as agricultural and forestry assets or as business assets, shall be treated as own agricultural and forestry assets or own business assets.
3. Debts which are not economically related to particular assets allocated to a joint and several debtor shall be deducted in equal shares from the individual joint and several debtors, insofar as it is not possible to establish a particular debtor.
Section 272
Apportionment formula for prepayments
(1) Prepayments outstanding shall be apportioned in proportion to the amounts which would result from a separate assessment of the prepayments. An application for appointment of prepayments shall simultaneously be deemed to be an application for apportionment of additional prepayments falling due in the same assessment period and of any final payment. A final apportionment shall be conducted once the assessment has been performed. The total tax minus the amounts which have not been included in the apportionment of the prepayments shall be apportioned. In doing so, every joint and several debtor shall be credited with the amounts paid by him towards the apportioned prepayments. Where this results in overpayment compared to the amount of apportionment, the amount overpaid shall be refunded.
(2) Where the prepayments are apportioned only once assessment has taken place, the apportionment formula applicable for the assessed tax shall be used.
Section 273
Apportionment formula for tax deficiencies
(1) Where the amendment of a tax assessment or its correction pursuant to section 129 leads to a tax deficiency, the tax arrears arising from the deficiency shall be apportioned in proportion to the excess amounts which result from a comparison of the corrected individual assessments with the earlier individual assessments.
(2) The apportionment formula referred to in subsection (1) above shall not apply where the tax hitherto assessed has not yet been repaid.
Section 274
Special apportionment formula
Notwithstanding the provisions of sections 270 to 273, the tax arrears may be apportioned according to a formula jointly proposed by the joint and several debtors, if repayment is guaranteed. The joint proposal shall be lodged in writing or declared for record; it shall be signed by all joint and several debtors.
Section 275
(rescinded)
Section 276
Tax arrears, commencement of enforcement
(1) Where the application is lodged with the revenue authority prior to the commencement of enforcement, the tax due at the time of receipt of the application for apportionment shall be apportioned.
(2) Where the application is lodged after enforcement commences, the tax that is due at the time enforcement commences, and that is the subject of enforcement proceedings, shall be apportioned.
(3) Withheld taxes and separately assessed prepayments shall also be included in the apportionment even if they were paid before the application was lodged.
(4) Tax arrears shall also include late-payment penalties, interest and late-filing penalties.
(5) Enforcement shall be deemed commenced when the notice of arrears is issued.
(6) Payments that have been made by a joint and several debtor after submission of an application under subsection (1) above or after enforcement commences under subsection (2) above, or that are to be included in an apportionment under subsection (3) above, shall be credited to the debtor who made the payments or for whom the payments have been made. Where, in doing so, this results in an overpayment compared with the amount of apportionment, the overpayment shall be refunded.
Section 277
Enforcement
As long as no incontestable decision has been taken regarding the application for the limitation of the enforcement, enforcement measures may only be implemented to the extent that this is necessary to secure the claim.
Section 278
Limitation of enforcement
(1) Following apportionment, the enforcement may only be implemented in accordance with the amounts attributable to the individual debtors.
(2) Where assets are given to a tax debtor free of charge by a person assessed with him during or after the assessment period for which tax arrears still exist, tax may, until the expiration of the tenth calendar month from the date of the issuance of the apportionment notice, be claimed from the recipient above and beyond the amount resulting pursuant to subsection (1) above up to the fair market value of this donation in kind. This shall not apply to common occasional gifts.
Section 279
Form and content of the apportionment notice
(1) Once enforcement has commenced, a uniformly applicable decision on the application to limit enforcement shall be communicated to the parties involved in the form of an apportionment notice issued in writing or electronically. However, no decision shall be required if no enforcement measures are taken or if enforcement measures already taken are rescinded.
(2) The apportionment notice shall indicate the amount of the proportional tax payable by each joint and several debtor; it shall be accompanied by instructions indicating which legal remedy is permissible, and the time period within which and the authority to which this remedy must be submitted. The notice should further include:
1. the amount of the tax to be apportioned,
2. the point in time decisive for the calculation of the tax arrears,
3. the extent of the tax bases which have been attributed to the individual joint and several debtors where there is divergence from the information provided by the joint and several debtors,
4. the amount of the tax payable by the individual joint and several debtors in the case of individual assessment (section 270),
5. the amounts to be credited against the joint and several debtor’s apportioned tax.
Section 280
Amendments to the apportionment notice
(1) Except in the cases referred to in section 129, the apportionment notice may only be amended where
1. it subsequently becomes known that the apportionment is based on incorrect information and the tax arrears could not be recovered in whole or in part as a result of incorrect apportionment,
2. the tax arrears increase or decrease through the cancellation or amendment of the tax assessment or its correction pursuant to section 129.
(2) After the termination of enforcement, an amendment to the apportionment notice or the correction thereof pursuant to section 129 shall no longer be permissible.
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