According to § 69 sentence 1 AO, the managing directors are liable for the tax debts of the GmbH if claims from the tax debt relationship are not (or not in time) established or fulfilled due to a culpable breach of duty.
The same applies to unlawful tax payments or tax refunds.
Basics
The managing director is in no way “guarantor” for the tax debts of the GmbH. If the GmbH cannot pay the tax debts, this initially has no consequences for the managing director.
This is only to be assessed differently if the managing director culpably violates his duties towards the tax office and this is precisely what causes damage.
Breach of duty
The managing director is responsible for the fulfillment of the tax obligations of the GmbH (cf. § 34 Abs. 1 AO).
Accordingly, the managing director is obliged, for example, to submit the tax returns of the GmbH on time and to pay the taxes on time.
In addition, the managing director must ensure that sufficient financial resources are available to ensure that the GmbH can pay future taxes. According to this, it represents a breach of duty on the part of the managing director if he (especially in crisis situations) first serves other creditors with available financial resources and can then no longer pay the taxes of the GmbH (frequent liability case).
damage
Usually the damage is that taxes are not paid.
causality
This damage must be causal, that is, the cause of the breach of duty.
This is not the case if the GmbH has no financial means at all.
If the financial means are insufficient to fully satisfy all creditors (including the tax office) and if the managing director “prefers” other creditors of the GmbH, the managing director is obliged to compensate the tax office for the portion of the taxes that would have been paid if the Managing director would have served all creditors to the same percentage (so-called differential damage).
The tax office calculates this differential damage by comparing the actual repayment rate with the hypothetical repayment rate that would have occurred if all creditors had been serviced equally.
Important: The managing director is obliged to participate in the calculation of the differential damage (§ 90 AO). If the managing director violates this obligation to cooperate, the tax office may estimate the hypothetical repayment rate (Section 162 AO). However, the estimated hypothetical repayment rate of 100%, which is often found in practice, is likely to be illegal in most cases.
Special features apply to wage tax. If the managing director pays the wages “net” without paying the wage tax, he is liable to that extent. The managing director can avoid this liability if he only pays out part of the wages during the crisis and pays the wage tax on this basis.
fault
The breach of duty must have been committed intentionally or with gross negligence.
Legal consequence
According to Section 191 (1) sentence 1 AO, it is at the discretion of the tax office to claim against the debtor by way of a liability notice. The discretion of the tax office is subject to the limited fiscal review (§ 102 FGO). Not infrequently, the manager’s liability claim fails due to an illegal exercise of discretion.
Other aspects
A large number of other aspects must be taken into account when legally reviewing a notice of liability. For example, the liability claims are subject to the statute of limitations (Section 191 (3) AO). Furthermore, for example, the reasons for blocking according to Section 191 (5) AO must be observed.
they have one Liability notice received? Contact the lawyer and specialist lawyer for tax law Dr. Christian Mäscher LL.M.to have the notice of liability checked.
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