“Don’t go to the prince before you are summoned,” says attorney Rüstig, until suddenly his first liability notice is delivered to him personally.
He had been obedient since 1.1. In 1993, he complied with the Interest Discount Act (“ZaSt “er!) by distributing the interest income from escrow accounts among his clients and then certifying it.
Subsequently – index non calculat – he dealt with the question of fair allocation and the certification of interest income on his collective escrow accounts.
The effort is annoying: time is money. But the matter must be settled, (cf. BStBl I 1992 p. 693) Where the question of the allocation of income – especially in the case of communities – could not be broken down, Rüstig invoked the professional secrecy of the legal profession: the interest statement was placed in the file – the beneficiary could pick it up at any time for his tax return. Rüstig thought he was off the hook, that the matter was well taken care of?
When the notice of liability landed on Rüstig’s desk, the matter had to be reopened:
“…the taxpayer named in the subject owes….. the ….. taxes or ancillary services listed below (…) As a former asset manager or person entitled to dispose of such arrears, you are liable for these arrears in accordance with ….i. V. m.§§ 69ff., 34, 35 AO.
The basis of assessment, it further states in the text, was a settlement reached by Rüstig, whereupon “a compensation payable via the attorney escrow account” had been transferred to his client. Of course, Rüstig knew that it had been a “performance fee” for the opponent’s use, i.e. actually a license payment. He remembers vaguely that the client had once declared, with an expression of the greatest innocence on his face, that the cloak of damage would make the work of his tax advisor easier for him when preparing the balance sheet. Rüstig had taken note of this carelessly. The client gave Rüstig a completely free hand, also with other orders of this kind. For Rüstig this was a successful affair: he looked after the client’s entire “film stock” (i.e. authors’ or producers’ rights) and also rights acquired by inheritance. Rüstig is outraged. The taxation of these transactions could hardly have anything to do with his legal work?
Rüstig is not aware of any guilt; after all, he had only worked as a lawyer and not as a tax consultant. So he consults his friend and tax advisor Schubert, and is shocked to discover that any kind of legal representation (as liquidator, executor of a will, guardian, bankruptcy trustee, guardian, person entitled to dispose in his own name or in the name of a third party) has expanded his legal duties. Rüstig had already had such cases on his desk in the past – a silly thing. Rüstig is instructed by Schubert that liability can also result from individual tax laws (see e.g. §§ 30 ff. ErbStG) and civil law (§§ 25, 27 HGB, 419, 23… BGB).
So a way out must be found.
First attempt: Rüstig had not acted as legal representative.
Failure: Because legal power of representation was, of a certain duration, already given (§ 168 BGB). “The decisive factor”, says Freund Schubert, “in this problem is the power of disposal in rem, especially as is the case with a bank power of attorney, lien, contract of remission or usufruct” . Schubert goes to his shelf and hands over a bundle of case law on the liability of straw man, secured party (e.g. bank liability from participation in a restructuring case or asset management), controlling shareholder, de facto managing director and trustees.
Before Rüstig begins to leaf through the pages, a new approach is tested: The assignment was finally terminated shortly after the lawyer’s work in question, namely by dismissal.
Second failure: The duties have already arisen at the time when R. held power of representation or disposal (§ 36 AO).
Rüstig becomes nervous: he did not have to file a tax return after all, and has not been able to do so since the termination of his mandate.
third failure: The duties justified in the relevant time according to § 36 AO continue, because lawyer Rüstig is himself tax (- declaration) obligated § 33 I AO and indeed in his own tax matter (not § 33 II AO). And: The information, proof, correction, bookkeeping as well as recording duties are to be fulfilled, §§ 33, 90, 149, 153 AO.
Rüstig begins to calculate. I wonder if he could at least spare himself the late fees. With nieces: The surcharges are on top. (§69 II AO) Do what? Rüstig points out that he is not well versed in the field of tax law and has therefore neither assumed representation before the tax authorities nor before the tax court.
This is true, says Schubert, but only in the opposite case, according to the doctrine of objective attribution, would no liability come into consideration. In this matter, Rüstig had collected assets from a settlement through his escrow account, and later settled them with the retention of the collection fee. Schubert quotes aloud: “Gross negligence is committed by anyone who, according to his personal knowledge, violates the care he is obliged and capable of exercising to an unusual degree” Schubert shows Rüstig the preliminary remark on § 249 BGB in Palandt m. w. N. Aha – so that is how it is! Things are getting tight. Rüstig emphasises that he had no intention of money laundering or tax evasion, for example of his clients (see GewAufSpG in BT-Drucksache 12/2704 from 1992; § 370 AO). In particular, he had not attempted to transfer funds abroad with the assistance of a bank present at the tax consultant’s day.
For this had been of great importance to the client at the time – and not only since 1 January. 1993 – the client’s credit institution already recommended by the client on his own initiative. In Schubert’s view, however, this does not matter (§ 69 AO). Small comfort would remain in the matter. The liability taxes to be paid by him can be taken into account as deductible business expenses in his own surplus calculation.
Finally, it is striking that the tax authority has exercised a discretion in the decision in question as to “whether and away”. He asks Schubert whether it matters that the foreign bank was a subsidiary of the domestic bank, where the money was transferred to via the attorney escrow account? Schubert declines: This is quite difficult – and who else but Rüstig could and should have realized “for the client and himself” that a fake compensation was not tax-free here. The fault of the bank on the basis of the recommendation weighed less, even if it was from there that the impulse to act came. Rüstig thinks out loud: He had only temporarily and only a part of the total assets at his disposal and his client could have paid the taxes then.
Schubert shakes his head and quotes the BFH: “As far as the power of disposal is sufficient, the taxes had to be declared and paid. And by the way, it would not help in the future either to explicitly restrict the power of attorney, for example according to the motto: “except the tax representation….”. After all, Schubert believes that public law obligations cannot be pushed under private law for free disposition. After termination of the power of disposal, it is no longer possible to pay taxes from the assets under management, but information or a declaration – limited to the assets under management – must nevertheless be provided. Ready:; in the absence of a timely declaration – within the statutory time limits – a liability is possible (§ 69 AO) Therefore, Schubert quotes from a notice “the breaches of duty described were also causal for the liability loss which would not have occurred without the breach of duty” – at that time the tax would have been assessed and collected in time.
The tax adviser adds: “In particular, the licence was probably subject to turnover tax, i.e. the objective fact of tax evasion was already fulfilled in the following month due to the lack of a prior declaration.
In a similar case, he had advised a property manager to file a voluntary disclosure under the AO. . . in order to avoid a liability notice:” . . . and before the community of heirs had converted the estate into cash which would quickly dissolve
Last attempt: This procedure is not constitutional, because the tax laws would not be understood by a legal layman, as Rüstig calls himself. Rüstig must admit, after a brief exchange of words with Schubert, that this does not help in view of the – relatively – clear wording and the lawyer’s customary diligence as well as the general duty to inquire. Therefore, anyone who puts himself in danger…
So Rüstig decides: 1. To be authorised in future by his clients to inform the tax authorities of tax facts. 2. to talk more frequently with Mr. Schubert, so that he can, if necessary, retain a part of the funds collected via the lawyer’s escrow account, until the taxation is secured or the limitation period (for his ! claim by notice of liability) has expired. 3. to think hard about the extent to which he or she is prevented from fulfilling his or her duties in accordance with the wishes of the tax legislator by collision with the attorney-client privilege (§ 203 StGB)
by Dr. Johannes Fiala
published in Anwaltsblatt 04/1994 (pages 185-186)
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Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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