GENERAL TERMS AND CONDITIONS
for Tax Consultants, Tax Representatives and Tax Consulting Companies, Status: July 2018.
The following “General Terms and Conditions of Business” shall apply to contracts between tax advisors, tax agents and tax consulting companies (hereinafter referred to as “tax advisors”) and their clients, unless otherwise expressly agreed in text form or mandatory by law.
1. Scope and execution of the assignment
(1) The scope of the services to be provided by the tax consultant shall be determined by the assignment given. The assignment shall be carried out in accordance with the principles of proper professional practice, taking into account the relevant professional standards and professional duties (cf. StBerG, BOStB).
(2) The consideration of foreign law requires an express agreement in text form.
(3) If the legal situation changes after a matter has been finally settled, the tax adviser is not obliged to inform the client of the change or the resulting consequences.
(4) The examination of the correctness, completeness and regularity of the documents and figures handed over to the tax consultant, in particular the bookkeeping and balance sheet, is only part of the assignment if this has been agreed in text form. The tax consultant shall assume that the information provided by the client, in particular the figures, is correct. If he discovers obvious inaccuracies, he shall be obliged to point them out.
(5) The assignment does not constitute a power of attorney for representation before authorities, courts and other bodies. It shall be issued separately. If, due to the absence of the client, it is not possible to consult with the client on the filing of appeals or legal remedies, the tax consultant shall, in case of doubt, be entitled and obliged to take action to meet the deadline.
2. duty of confidentiality
(1) In accordance with the law, the tax consultant shall be obliged to maintain secrecy about all facts which come to his knowledge in connection with the execution of the assignment, unless the client releases him from this obligation. The duty of confidentiality shall continue to exist even after termination of the contractual relationship. The duty of confidentiality also applies to the same extent to the tax consultant’s employees.
(2) The duty of confidentiality does not apply insofar as disclosure is necessary to protect the tax consultant’s legitimate interests. The tax consultant is also released from the duty of confidentiality insofar as he is obliged to provide information and cooperation according to the insurance conditions of his professional liability insurance.
(3) Statutory rights to information and to refuse to give evidence according to § 102 AO, § 53 StPO and § 383 ZPO remain unaffected.
(4) The tax consultant is released from the duty of confidentiality insofar as this is necessary to carry out a certification audit in the tax consultant’s office and the persons working in this respect have in turn been instructed about their duty of confidentiality. The client agrees that the certifier/auditor may inspect the client’s file, which has been created and kept by the tax adviser.
3. involvement of third parties
The tax consultant shall be entitled to involve employees and, under the conditions of § 62a StBerG, also external service providers (in particular data processing companies) in the execution of the assignment. The involvement of expert third parties in the processing of the mandate (e.g. other tax advisors, auditors, lawyers) shall require the client’s consent and order. The tax adviser shall not be entitled or obliged to involve such third parties without the client’s instruction.
3a. Electronic Communication, Data Protection1)
(1) The tax consultant shall be entitled to collect the client’s personal data by machine within the framework of the instructions given and to process it in an automated file or to transfer it to a service computer centre for further commissioned data processing.
(2) The tax adviser is entitled to appoint a data protection officer in fulfilment of his obligations under the DSGVO and the Federal Data Protection Act. Insofar as this data protection officer is not already subject to the duty of confidentiality in accordance with Section 2 (1) sentence 3, the tax adviser must ensure that the data protection officer undertakes to maintain data secrecy on commencement of his activity.
(3) If the client wishes to communicate with the tax consultant by fax or e-mail, the client must contribute to the costs of setting up and maintaining the use of the tax consultant’s signature and encryption procedures (e.g. for the acquisition and installation of the necessary software and hardware).
4. Remedy of defects
(1) The client shall be entitled to have any defects rectified. The tax consultant must be given the opportunity to rectify the defect. The client shall have the right – if and insofar as the mandate is a service contract within the meaning of §§ 611, 675 of the German Civil Code (BGB) – to refuse rectification by the tax consultant if the mandate is terminated by the client and the defect is only discovered after the effective termination of the mandate.
(2) If the tax consultant does not rectify the asserted defects within a reasonable period of time or if he refuses to rectify the defects, the client may have the defects rectified by another tax consultant at the tax consultant’s expense or, at his option, demand a reduction in the remuneration or cancellation of the contract.
(3) Obvious inaccuracies (e.g. typing errors, arithmetical errors) may be corrected by the tax consultant at any time, including vis-à-vis third parties. The tax consultant may correct other deficiencies vis-à-vis third parties with the client’s consent. Consent is not required if legitimate interests of the tax adviser take precedence over the interests of the client.
(1) The liability of the tax consultant and his vicarious agents for damage resulting from one or – in the case of uniform damage – from several breaches of duty on the occasion of the fulfilment of an assignment shall be limited to € 1,000,000.00 (in words: one million €). The limitation of liability relates solely to negligence. Liability for intent remains unaffected in this respect. Excluded from the limitation of liability are liability claims for damages arising from injury to life, body or health. The limitation of liability shall apply to the entire activity of the tax adviser for the client, i.e. in particular also to an extension of the content of the assignment; a renewed agreement on the limitation of liability shall not be required in this respect. The limitation of liability shall also apply in the event of the formation of a partnership and the assumption of the assignment by the partnership as well as for new partners joining the partnership. The limitation of liability shall also apply to third parties insofar as they fall within the scope of protection of the client-lawyer relationship; § 334 of the German Civil Code (BGB) is expressly not waived in this respect. Individual contractual liability limitation agreements shall take precedence over this provision, but shall not affect the validity of this provision – unless expressly provided otherwise.
(2) The limitation of liability shall apply retroactively from the beginning of the client-lawyer relationship or the time of the higher insurance coverage, if correspondingly high insurance coverage existed, and shall also extend to these cases if the scope of the assignment is subsequently changed or expanded.
6. Duties of the principal; failure to cooperate and default of acceptance by the principal
(1) The client shall be obliged to cooperate insofar as this is necessary for the proper completion of the assignment. In particular, he must hand over to the tax consultant, without being asked to do so, all the documents necessary for the execution of the assignment, in full and in good time, so that the tax consultant has a reasonable period of time in which to process them. The same shall apply to the provision of information on all processes and circumstances which may be of significance for the execution of the assignment. The client shall be obliged to take note of all written and oral communications from the tax consultant and to consult him in the event of doubt.
(2) The client must refrain from doing anything that could impair the independence of the tax consultant or his vicarious agents.
(3) The client undertakes to pass on the tax consultant’s work results only with the tax consultant’s consent, insofar as the consent to pass them on to a specific third party does not already result from the content of the assignment.
(4) If the tax consultant uses data processing programs on the client’s premises, the client shall be obliged to comply with the tax consultant’s instructions on the installation and use of the programs. Furthermore, the client is obliged to use the programs only to the extent prescribed by the tax consultant, and he is also entitled to use them only to that extent. The client may not distribute the programmes. The tax consultant shall remain the owner of the rights of use. The client must refrain from doing anything that would prevent the tax consultant from exercising the rights of use to the programmes.
(5) If the client fails to cooperate in accordance with section 6, paragraphs 1 to 4 or otherwise, or if he is in default of acceptance of the service offered by the tax consultant, the tax consultant shall be entitled to terminate the contract without notice (cf. section 9, paragraph 3). The tax consultant’s claim to compensation for the additional expenses incurred by him as a result of the client’s default or failure to cooperate, and for the damage caused, shall remain unaffected, even if the tax consultant does not make use of the right of termination.
7. copyright protection
The tax consultant’s services constitute his intellectual property. They are protected by copyright. Work results may only be passed on outside their intended use with the prior consent of the tax consultant in text form.
8 Remuneration, advance payment and set-off
(1) The remuneration (fees and reimbursement of expenses) of the tax consultant for his professional activity according to § 33 StBerG shall be calculated according to the Tax Consultant Remuneration Ordinance (StBVV). A higher or lower remuneration than the statutory remuneration may be agreed in text form. The agreement of a lower remuneration is only permissible in extrajudicial matters. It must be in reasonable proportion to the performance, responsibility and liability risk of the tax adviser (Article 4(3) StBVV).
(2) For activities which are not regulated in the Remuneration Ordinance (e.g. Article 57(3) nos. 2 and 3 StBerG), the agreed remuneration shall apply, otherwise the statutory remuneration provided for this activity, otherwise the usual remuneration (Articles 612(2) and 632(2) BGB).
(3) Offsetting against a remuneration claim of the tax consultant is only permitted with undisputed or legally established claims.
(4) The tax consultant may demand an advance payment for fees and expenses already incurred or likely to be incurred. If the advance payment demanded is not paid, the tax consultant may, after giving prior notice, cease further work for the client until the advance payment is received. The tax consultant shall be obliged to inform the client in good time of his intention to discontinue his work if the client may suffer disadvantages as a result of the discontinuation of his work.
9. Termination of the contract
(1) The contract shall end on fulfilment of the agreed services, on expiry of the agreed term or on termination. The contract does not end by death, by the occurrence of the legal incapacity of the principal or, in the case of a company, by its dissolution.
(2) The contract may – if and insofar as it constitutes a service contract within the meaning of sections 611, 675 of the German Civil Code (BGB) – be terminated extraordinarily by either contracting party, unless it is a service contract with fixed remuneration, section 627 subsection 1 of the German Civil Code (BGB); the termination must be in text form. If this is to be deviated from in individual cases, this shall require an agreement to be negotiated between the tax consultant and the client.
(3) In the event of termination of the contract by the tax consultant, in order to avoid legal disadvantages for the client, the tax consultant must in any case take those actions which are reasonable and cannot be delayed (e.g. application for an extension of the deadline in the event of imminent expiry of the deadline).
(4) The tax consultant is obliged to hand over to the client everything he receives or has received for the execution of the assignment and everything he obtains from the business assignment. In addition, the tax consultant is obliged to provide the client with information on the status of the matter and to give an account of it on request.
(5) On termination of the contract, the client must immediately return to the tax consultant the data processing programs used by the client to carry out the assignment, including any copies made, and other program documents, or delete them from the hard disk.
(6) After termination of the assignment, the documents must be collected from the tax consultant.
(7) If the assignment ends before it has been fully executed, the tax consultant’s claim to remuneration shall be governed by the law. If this is to be deviated from in individual cases, a separate agreement in text form is required.
10. Retention, surrender and right of retention with regard to work results and documents
(1) The tax consultant shall keep the reference files for a period of ten years after completion of the assignment. However, this obligation shall expire before the end of this period if the tax consultant has requested the client to take receipt of the reference files and the client has not complied with this request within six months of receiving them.
(2) Hand files within the meaning of paragraph 1 are only those documents which the tax consultant has received from or on behalf of the client on the occasion of his professional activity, but not the correspondence between the tax consultant and his client and for those documents which the latter has already received in original or copy, as well as for working papers prepared for internal purposes (Article 66(3) StBerG).
(3) At the request of the client, but at the latest after completion of the assignment, the tax consultant must hand over the reference files to the client within a reasonable period of time. The tax consultant may make and retain copies or photocopies of documents which he returns to the client.
(4) The tax consultant may refuse to hand over the reference files until he has been paid his fees and expenses. This shall not apply if withholding the reference files and the individual documents would be unreasonable in the circumstances (§ 66 (2) sentence 2 StBerG).
The assignment, its execution and the claims arising therefrom shall be governed exclusively by German law. The place of performance shall be the client’s place of residence, unless the client is a merchant, a legal entity under public law or a special fund under public law, otherwise it shall be the tax consultant’s place of business. The tax consultant is – not – willing to participate in dispute resolution proceedings before a consumer arbitration board (§§ 36, 37 VSBG).2)
12 Effectiveness in the event of partial invalidity
If individual provisions of these terms and conditions are or become invalid, the validity of the remaining provisions shall not be affected thereby.
1) In order to process personal data, a legal basis from Art. 6 DSGVO must also be relevant. This merely lists the legal bases for lawful processing of personal data. The tax advisor must also fulfil the information obligations pursuant to Art. 13 or 14 of the GDPR by providing additional information. In this regard, the notes and explanations in the information sheet for form no. 1005 “Data protection information for clients” and no. 1006 “Data protection information on the processing of employee data” must be observed.
2) If the conduct of dispute resolution proceedings before the consumer arbitration board is desired, the word “not” shall be deleted. In this case, reference shall be made to the competent consumer arbitration board, stating its address and website.
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