General Terms and Conditions for Tax Consultants, Tax Agents and Tax Consulting Companies
Status: August 2022
The following "General Terms and Conditions of Business" apply to contracts between tax consultants, tax agents and tax consulting companies, in particular WSB Wolf Beckerbauer Hummel & Partner Steuerberatungsgesellschaft mbB (hereinafter referred to as "Tax Consultants") and their clients, unless otherwise expressly agreed in text form or mandatory by law.
- Scope and execution of the order
The order placed is decisive for the scope of the services to be rendered by the tax consultant. The assignment is carried out in accordance with the principles of proper professional practice, taking into account the relevant professional standards and professional duties (cf. StBerG, BOStB).
The consideration of foreign law requires an express agreement in text form.
Insofar as the legal situation changes after a matter has been finally settled, the tax advisor shall not be obliged to inform the client of the change or the consequences resulting therefrom.
The examination of the correctness, completeness and regularity of the documents and figures provided to the tax consultant, in particular the bookkeeping and balance sheet, shall only be part of the assignment insofar as this has been agreed at least in text form. The Tax Consultant shall assume that the information provided by the Client, in particular the figures, is correct. Insofar as the tax consultant discovers obvious inaccuracies, he shall be obliged to point these out.
The order does not constitute a power of attorney for representation before authorities, courts and other bodies. Such power of attorney shall be issued separately. If, due to the absence of the client, it is not possible to coordinate with the client on the filing of appeals or legal remedies, the tax advisor shall, in case of doubt, be entitled and obligated to take actions to meet the deadline.
In accordance with the law, the tax consultant is obliged to maintain secrecy about all facts that come to his knowledge in connection with the execution of the assignment, unless the client releases him from this obligation. After termination of the contractual relationship, the obligation to maintain secrecy shall continue. The duty of confidentiality shall apply to the same extent to the Tax Consultant's employees.
Insofar as disclosure is necessary to protect the tax consultant's legitimate interests, the duty of confidentiality shall not apply. The tax advisor 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.
The statutory rights to information and to refuse to give evidence pursuant to Section 102 of the German Tax Code (AO), Section 53 of the Code of Criminal Procedure (StPO) and Section 383 of the Code of Civil Procedure (ZPO) shall remain unaffected.
There is no obligation to maintain secrecy 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 obligation to maintain secrecy. The client agrees that the certifier/auditor may inspect the client's file, which has been filed and kept by the tax advisor.
- Third party involvement
For the execution of the order, the tax consultant is entitled to involve employees and data processing companies. The tax consultant is only authorized to commission third parties with the corresponding express consent of the client.
The tax advisor is responsible for ensuring that when expert third parties and data processing companies are involved, they are bound to secrecy in accordance with the provisions.
If general representatives (§ 69 StBerG) and practice trustees (§ 71 StBerG) are consulted, the tax advisor is entitled to inspect the reference files within the meaning of § 66 (2) StBerG.
If it is necessary to fulfill his legal obligations, the tax consultant is entitled to appoint a data protection officer. The tax advisor must ensure that the data protection officer commits himself to data secrecy upon commencement of his activities.
The Client shall give the Tax Consultant his express consent that the latter may transfer or assign the collection of existing and future fee claims from the Client to a third party. The third party may also be a person or association of persons who is not a tax advisor.
- Elimination of defects
The client shall be entitled to have any defects remedied, whereby the tax consultant shall be given the opportunity to remedy the defects.
The Client shall have the right - if and to the extent that 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.
If the tax consultant does not remedy the defects claimed within a reasonable period of time or if he refuses to remedy the defects, the client may have the defects remedied by another tax consultant at the tax consultant's expense or, at his option, demand a reduction of the remuneration or rescission of the contract.
Obvious inaccuracies such as typing or calculation errors may be corrected by the tax consultant at any time, also vis-à-vis third parties. The tax consultant may correct other errors vis-à-vis third parties with the client's consent. Consent shall not be required if legitimate interests of the tax consultant take precedence over the interests of the client.
The tax consultant shall be liable for his own fault as well as for the fault of his vicarious agents.
A claim for damages on the part of the Customer shall be time-barred unless it is subject to a shorter limitation period by operation of law,
- in three years from the end of the year in which the claim arose and the client became aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware without gross negligence;
- regardless of its origin and the knowledge or grossly negligent ignorance within ten years from the act causing the damage, the breach of duty or the other event causing the damage. The period ending earlier shall be decisive.
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 performance of an assignment shall be limited to € 4,000,000.00 (in words: four million €).
The limitation of liability relates solely to negligence. Liability for intent shall remain unaffected in this respect. Excluded from the limitation of liability are liability claims for damages resulting from injury to life, body or health. The limitation of liability shall apply to the entire activity of the Tax Consultant 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 that the firm/partnership takes over the assignment as well as for new partners joining the firm/partnership. Furthermore, the stipulated limitation of liability shall also apply to third parties insofar as these fall within the scope of protection of the mandate relationship. In this respect, § 334 BGB is expressly not waived. Individual contractual liability limitation agreements shall take precedence over this provision, but shall not affect the validity of this provision - unless expressly provided otherwise.
The limitation of liability shall apply retroactively from the beginning of the mandate 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 mandate is subsequently changed or expanded.
- Obligations of the client
The client shall be obliged to cooperate to the extent necessary for the proper completion of the assignment. In particular, the client must provide the tax consultant, without being requested to do so, with all documents required for the execution of the assignment, in full and in good time, so that the tax consultant has a reasonable amount of time to process them. This shall apply mutatis mutandis 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 verbal communications from the tax consultant and to consult the tax consultant in the event of doubt.
The client shall refrain from anything that could impair the independence of the tax advisor or his vicarious agents.
The client may only pass on the results of the tax consultant's work with the tax consultant's consent, unless the consent to pass them on to a specific third party already results from the content of the order.
If the Tax Consultant uses data processing programs at 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 shall be obliged to use the programs only to the extent prescribed by the tax consultant, and shall also be entitled to use them only to that extent. The client shall not be permitted to distribute the programs. The Tax Consultant shall remain the owner of the rights of use. The Client shall refrain from doing anything that would prevent the Tax Consultant from exercising the rights of use to the programs.
If the client fails to cooperate in accordance with Clause 6, Paragraphs 1 to 4 or otherwise, or if he/she defaults in accepting the service offered by the tax consultant, the tax consultant shall be entitled to terminate the contract without notice (cf. Clause 11, Paragraph 2). The Tax Consultant's claim to compensation for the additional expenses incurred by him as a result of the delay or the Client's failure to cooperate, as well as for the damage caused, shall remain unaffected, even if the Tax Consultant does not make use of the right of termination.
The services of the tax consultant are protected by copyright as his intellectual property. The transfer of work results outside the intended use is only permitted with the consent of the tax consultant in text form.
- Failure to Cooperate and Default of Acceptance by the Customer
If the client fails to cooperate in accordance with no. 6 or otherwise, or if the client defaults in accepting the service offered by the tax consultant, the tax consultant shall be entitled to set a reasonable deadline with the declaration that he will refuse to continue the contract after the deadline has expired. If the deadline expires without success, the Tax Consultant shall be entitled to terminate the contract without notice. The Tax Consultant's claim to compensation for the additional expenses incurred by him as a result of the delay or the Client's failure to cooperate, as well as for the damage caused, shall remain unaffected even if the Tax Consultant does not make use of the right of termination.
Personal data will only be processed by the tax advisor in accordance with data protection regulations, and the tax advisor will comply with its legal obligations in this regard.
The tax advisor is responsible for any processing of personal data within the meaning of Art. 4 No. 7 DSGVO and works without instructions from the client.
The Tax Consultant is entitled to collect personal data of the Client by machine within the scope of the orders placed and to process them in an automated file or to transfer them to a service computer center for further order data processing.
- Remuneration assessment
It is pointed out to the client that the tax advisor may, in principle, agree on a higher or lower remuneration in text form instead of the statutory remuneration. 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 consultant (Section 4 (3) StBVV). Unless otherwise agreed, the remuneration (fees and reimbursement of expenses) of the tax advisor for his professional activities shall be calculated in accordance with Section 33 StBerG.
For activities which are not regulated in the remuneration ordinance or the agreement, the usual remuneration shall apply (Section 612 (2) and Section 632 (2) of the German Civil Code).
A set-off against a remuneration claim of the tax consultant is only permissible with undisputed or legally established claims.
The tax advisor may request an advance payment for fees and expenses already incurred and expected to be incurred.
Insofar as 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 inform the client in good time of his intention to discontinue the activity, so that the client cannot suffer any disadvantages from the discontinuation of the activity.
Termination of the contract
The contract ends with the fulfillment of the agreed services, by expiry of the agreed term or by termination. The contract shall not terminate upon the death or incapacity of the Client or, in the case of a company, upon its dissolution.
The contract may - if and insofar as it is 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 an employment relationship with fixed remuneration within the meaning of Section 627 (1) of the German Civil Code (BGB); the termination must be in text form. Insofar as this is to be deviated from in individual cases, a written agreement is required, which is to be prepared separately and handed over to the Client.
In the event of termination of the contract by the Tax Consultant, in order to avoid legal disadvantages for the Client, the Tax Consultant shall in any case still take such actions as are reasonable and cannot be delayed (e.g. application for extension of deadline in the event of imminent expiry of the deadline). The Tax Consultant shall be liable for such actions in accordance with the provisions on liability in these Terms and Conditions of Engagement.
The tax adviser shall surrender to the client everything that he receives or has received for the execution of the assignment and everything that he obtains from the business assignment.
Furthermore, the tax advisor is obligated to provide the client with information on the status of the matter upon request and to render an account.
Upon termination of the contract, the Client shall immediately return to the Tax Consultant the data processing programs used by the Client for the execution of the order, including any copies made, as well as any other program documents, or delete them from the hard disk.
The documents shall be collected from the tax advisor upon termination of the engagement.
If the assignment ends before its complete execution, the Tax Consultant's claim to remuneration shall be governed by law. If this is to be deviated from in individual cases, a separate agreement in text form is required.
- Retention, surrender and rights of retention
In principle, the tax consultant shall keep the reference files for a period of ten years after termination of the assignment. However, this obligation shall expire before the expiry 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.
Hand files within the meaning of this provision are only documents which the tax consultant has received from or on behalf of the client on the occasion of his professional activity. This does not include correspondence between the tax advisor and his client or documents which the client has already received in original or copy, as well as working papers prepared for internal purposes (Section 66 (2) sentence 4 StBerG, new version).
At the request of the Client, but at the latest after completion of the assignment, the Tax Consultant shall return the reference files to the Client within a reasonable period of time. Before returning the documents, the tax consultant shall be entitled to make copies or photocopies and to retain them or to do so by means of electronic data processing.
The tax advisor may refuse to hand over the documents until his fees and expenses have been satisfied. This does not apply if the withholding is unreasonable (Section 66 (3) StBerG, new version).
- Applicable law and place of performance
The order, the execution of the order, as well as the claims resulting therefrom shall be governed exclusively by German law.
Insofar as the client is not a merchant, a legal entity under public law or a special fund under public law, the client's place of residence shall be deemed to be the place of performance; otherwise, the tax consultant's place of business shall be deemed to be such place of performance.
- Dispute Resolution
The tax advisor is not legally obligated nor voluntarily willing to participate in a dispute resolution procedure before a consumer arbitration board.
- Effectiveness in case of partial invalidity, written form
Should any provision of these Terms and Conditions of Contract be or become invalid, this shall not affect the validity of the remainder of the General Terms and Conditions of Contract. The invalid provision shall then be replaced by a provision that comes closest to the economic purpose of the invalid provision in a legally permissible manner.
Changes and additions to these terms and conditions must be made in writing.
General Terms and Conditions of Engagement for Auditors and Auditing Firms dated January 1, 2017
- (1) The engagement terms and conditions apply to contracts between Wirtschaftsprüfer or Wirtschaftsprüfungsgesellschaften (hereinafter collectively referred to as "Wirtschaftsprüfer") and their clients for audits, tax consulting, consulting in business matters and other engagements, unless otherwise expressly agreed in writing or mandatory by law.
- (2) Third parties may only derive claims from the contract between the Wirtschaftsprüfer and the client if this is expressly agreed or results from mandatory legal provisions. With regard to such claims, these engagement terms also apply to these third parties.
- Scope and execution of the order
- (1) The subject of the order is the agreed service, not a specific economic success. The engagement is performed in accordance with the principles of proper professional practice. The Wirtschaftsprüfer does not assume any management tasks in connection with his services. The Wirtschaftsprüfer is not responsible for the use or implementation of the results of his services. The Wirtschaftsprüfer is entitled to use the services of experts for the performance of the engagement.
- (2) The consideration of foreign law requires - except for business audits - an explicit written agreement.
- (3) If the factual or legal situation changes after the final professional statement has been issued, the Wirtschaftsprüfer is not obliged to draw the client's attention to any changes or to any consequences arising therefrom.
- Cooperation obligations of the customer
- (1) The client must ensure that the Wirtschaftsprüfer is provided in a timely manner with all documents and other information necessary for the performance of the engagement and is informed of all events and circumstances that may be of significance for the performance of the engagement. This also applies to documents and further information, processes and circumstances that only become known during the Wirtschaftsprüfer's work. The client shall name suitable persons to provide the Wirtschaftsprüfer with information.
- (2) At the request of the auditor, the client shall confirm the completeness of the documents submitted and the further information as well as the information and explanations given in a written statement formulated by the auditor.
- Securing independence
- (1) The client must refrain from anything that jeopardizes the independence of the Wirtschaftsprüfer's staff. For the duration of the engagement, this applies in particular to offers of employment or assumption of board functions and to offers to accept engagements on one's own account.
- (2) Should the performance of the engagement compromise the independence of the Wirtschaftsprüfer, the independence of the Wirtschaftsprüfer's affiliated companies, the Wirtschaftsprüfer's network companies or such companies associated with the Wirtschaftsprüfer to which the independence regulations apply in the same way as to the Wirtschaftsprüfer, in other engagement relationships, the Wirtschaftsprüfer shall be entitled to terminate the engagement for cause.
- Reporting and oral information
- Insofar as the auditor has to present results in writing within the scope of the processing of the engagement, this written presentation alone shall be authoritative. Drafts of written presentations are not binding. Unless otherwise agreed, oral statements and information provided by the Wirtschaftsprüfer are only binding if they are confirmed in writing. Statements and information provided by the Wirtschaftsprüfer outside the scope of the engagement are always non-binding.
- Disclosure of a professional statement of the auditor
- (1) The disclosure of the Wirtschaftsprüfer's professional statements (work results or excerpts of work results - whether in draft or final form) or information about the Wirtschaftsprüfer's work for the client to a third party requires the written consent of the Wirtschaftsprüfer, unless the client is obliged to disclose or inform on the basis of a law or an official order.
- (2) The use by the client of professional statements made by the Wirtschaftsprüfer and information about the Wirtschaftsprüfer's work for the client for advertising purposes is not permitted.
- Elimination of defects
- (1) In the event of any defects, the client is entitled to subsequent performance by the Wirtschaftsprüfer. Only in the event of failure, omission or unjustified refusal, unreasonableness or impossibility of subsequent performance may the client reduce the remuneration or withdraw from the contract; if the engagement was not placed by a consumer, the client may only withdraw from the contract due to a defect if the service rendered is of no interest to the client due to failure, omission, unreasonableness or impossibility of subsequent performance. Insofar as claims for damages exist beyond this, No. 9 shall apply.
- (2) The claim for rectification of defects must be asserted by the Customer in text form without delay. Claims according to para. 1, which are not based on an intentional act, shall become statute-barred after the expiry of one year from the statutory commencement of the limitation period.
- (3) Obvious inaccuracies, such as typing errors, miscalculations and formal deficiencies, contained in a professional statement (report, expert opinion and the like) of the Wirtschaftsprüfer may be corrected by the Wirtschaftsprüfer at any time, also vis-à-vis third parties. Inaccuracies that are capable of calling into question the results contained in the Wirtschaftsprüfer's professional statement entitle the Wirtschaftsprüfer to withdraw the statement, also vis-à-vis third parties. In the aforementioned cases, the client must be heard by the Wirtschaftsprüfer as far as possible in advance.
- Confidentiality towards third parties, data protection
- (1) In accordance with the law (Section 323 (1) HGB, Section 43 WPO, Section 203 StGB), the Wirtschaftsprüfer is obliged to maintain confidentiality about facts and circumstances entrusted to him or becoming known to him in the course of his professional activities, unless the client releases him from this confidentiality obligation.
- (2) When processing personal data, the auditor shall comply with national and European data protection regulations.
- (1) For legally prescribed services of the Wirtschaftsprüfer, in particular audits, the respective applicable statutory limitations of liability shall apply, in particular the limitation of liability of Section 323 (2) HGB.
- (2) Insofar as neither a statutory limitation of liability applies nor an individual contractual limitation of liability exists, the liability of the Wirtschaftsprüfer for claims for damages of any kind, with the exception of damages arising from injury to life, limb and health, as well as damages which give rise to a liability to pay compensation on the part of the manufacturer pursuant to Section 1 of the German Product Liability Act (ProdHaftG), shall be limited to €4 million in the event of a single case of damage caused by negligence pursuant to Section 54a (1) No. 2 WPO.
- (3) The Wirtschaftsprüfer is also entitled to defences and objections arising from the contractual relationship with the client against third parties.
- (4) If several claimants derive claims from the contractual relationship existing with the Wirtschaftsprüfer from a negligent breach of duty on the part of the Wirtschaftsprüfer, the maximum amount specified in paragraph 2 shall apply to the relevant claims of all claimants in total.
- (5) A single case of damage within the meaning of para. 2 shall also be deemed to exist in respect of a uniform damage arising from several breaches of duty. The individual case of damage shall include all consequences of a breach of duty irrespective of whether damage has occurred in one or in several consecutive years. In this context, multiple acts or omissions based on the same or similar source of error shall be deemed to be a single breach of duty if the matters concerned are legally or economically related to each other. In this case, the auditor can only be held liable up to the amount of €5 million. The limitation to five times the minimum sum insured does not apply in the case of statutory mandatory audits.
- (6) A claim for damages shall expire if no action is brought within six months of the written rejection of the compensation and the Customer was informed of this consequence. This shall not apply to claims for damages that are attributable to intentional conduct and in the event of culpable injury to life, limb or health as well as in the event of damages that give rise to a manufacturer's obligation to pay compensation pursuant to Section 1 of the German Product Liability Act (ProdHaftG). The right to assert the defense of limitation shall remain unaffected.
- Supplementary provisions for audit engagements
- (1) If the client subsequently changes the financial statements or management report audited by the auditor and issued with an audit opinion, the client may not continue to use this audit opinion.
If the auditor has not issued an audit opinion, a reference to the audit performed by the auditor in the management report or in another place intended for the public is only permissible with the written consent of the auditor and with the wording approved by the auditor.
- (2) If the Wirtschaftsprüfer revokes the auditor's report, the auditor's report may no longer be used. If the client has already used the audit opinion, he shall disclose the revocation at the request of the Wirtschaftsprüfer.
- (3) The client is entitled to five copies of the report. Further copies shall be invoiced separately.
- (1) If the client subsequently changes the financial statements or management report audited by the auditor and issued with an audit opinion, the client may not continue to use this audit opinion.
- Supplementary provisions for assistance in tax matters
- (1) The Wirtschaftsprüfer is entitled, both in the case of advice on individual tax matters and in the case of ongoing advice, to assume that the facts stated by the client, in particular figures, are correct and complete; this also applies to accounting engagements. However, he must draw the client's attention to any inaccuracies he discovers.
- (2) The tax consulting engagement does not include the actions required to meet deadlines, unless the Wirtschaftsprüfer has expressly accepted the engagement for this purpose. In this case, the client must submit to the Wirtschaftsprüfer all documents essential for the observance of deadlines, in particular tax assessment notices, in such a timely manner that the Wirtschaftsprüfer has a reasonable processing time.
- (3) In the absence of a written agreement to the contrary, ongoing tax consulting shall include the following activities falling within the term of the contract:
- a) preparation of annual tax returns for income tax, corporate income tax and trade tax, as well as property tax returns, based on the annual financial statements to be submitted by the client and other statements and evidence required for taxation purposes
- b) review of tax assessment notices concerning the taxes referred to in a) above
- c) negotiations with the tax authorities in connection with the declarations and notices referred to in a) and b) above
- d) participation in tax audits and evaluation of the results of tax audits with regard to the taxes referred to in a) above
- e) participation in opposition and appeal proceedings regarding the taxes referred to in a) above.
- In performing the foregoing duties, the auditor shall consider significant published case law and administrative opinion.
- (4) If the auditor receives a lump-sum fee for ongoing tax advice, then, in the absence of written agreements to the contrary, the activities referred to in paragraph 3 letters d) and e) shall be remunerated separately.
- (5) If the Wirtschaftsprüfer is also a tax advisor and the Tax Advisor Remuneration Ordinance is applicable for the assessment of the remuneration, a higher or lower remuneration than the statutory remuneration may be agreed in text form.
- (6) The processing of special individual questions of income tax, corporate income tax, trade tax, standard valuation and property tax as well as all questions of value added tax, wage tax, other taxes and duties shall be carried out on the basis of a special order. This shall also apply to
- a) processing of one-time tax matters, e.g. in the field of inheritance tax, capital transfer tax, real estate transfer tax,
- b) participation and representation in proceedings before the courts of fiscal and administrative jurisdiction and in criminal tax cases,
- c) advisory and expert activities in connection with transformations, capital increases and reductions, reorganizations, entry and exit of a shareholder, sale of a business, liquidation and the like; and
- d) support in the fulfillment of notification and documentation obligations.
- (7) Insofar as the preparation of the annual VAT return is also assumed as an additional activity, this does not include the review of any special accounting requirements and the question of whether all possible VAT benefits have been exercised. A guarantee for the complete recording of the documents for the assertion of the input tax deduction is not assumed.
- Electronic communication
- Communication between the Wirtschaftsprüfer and the client may also take place by e-mail. Insofar as the client does not wish to communicate by e-mail or has special security requirements, such as the encryption of e-mails, the client shall inform the Wirtschaftsprüfer accordingly in text form.
- (1) In addition to his fees or remuneration, the Wirtschaftsprüfer is entitled to reimbursement of his expenses; value added tax will be charged additionally. He may demand reasonable advances on remuneration and reimbursement of expenses and make the delivery of his services dependent on the full satisfaction of his claims. Several clients shall be liable as joint and several debtors.
- (2) If the client is not a consumer, offsetting against claims of the Wirtschaftsprüfer for remuneration and reimbursement of expenses is only permissible with undisputed or legally established claims.
- Dispute resolution
- The Wirtschaftsprüfer is not prepared to participate in dispute resolution proceedings before a consumer arbitration board within the meaning of Section 2 of the German Consumer Dispute Resolution Act (Verbraucherstreitbeilegungsgesetz).
- Applicable law
- Only German law shall apply to the order, its execution and the claims arising therefrom.