Spitz Wirtschafts- & Steuerberatung
Steuerberater Georg Spitz, Dipl.-Betriebswirt (FH)
Tel.: +49 9181 23223-0
Fax. +49 9181 23223-9
The following "General Terms and Conditions of Contract" apply to contracts between tax consultants, tax agents and tax consulting companies (hereinafter referred to as "tax consultants") and their clients, unless otherwise expressly agreed upon in writing or mandatory by law.
(1) The scope of the services to be rendered by the tax consultant shall be determined by the order placed. 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 [Tax Consultants' Act], BOStB [vocational law provisions of the Professional Ordinance of the Federal Chamber of Tax Consultants]).
(2) The consideration of foreign law requires an express written agreement.
(3) If the legal situation changes after completion of a matter, the tax consultant 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, shall only be part of the assignment if this has been agreed upon in writing. The tax consultant shall assume that the information provided by the client, in particular the figures, is correct. Insofar as obvious inaccuracies are discovered, these will be pointed out to the client.
(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.
(1) The tax consultant is obliged, in accordance with the law, to maintain secrecy about all facts which come to their knowledge in connection with the execution of the assignment, unless the client releases them from their obligation. The obligation to maintain secrecy shall continue to exist after termination of the contractual relationship.
(2) The duty of confidentiality also exists to the same extent for the employees of the tax consultant.
(3) The duty of confidentiality does not exist 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 they are obliged to provide information and cooperation according to the insurance conditions of their professional liability insurance.
(4) Statutory rights to information and to refuse to give evidence according to § 102 AO, § 53 StPO, § 383 ZPO remain unaffected.
(5) 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 consultant.
(1) The tax consultant is 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.
(2) The involvement of expert third parties for the processing of the mandate (e.g. other tax consultants, auditors, lawyers) requires the consent and the order of the client. The tax consultant is not entitled or obliged to involve these third parties without the client's order.
(1) The tax consultant shall be entitled to collect personal data of the client by machine within the scope of the orders placed and to process it in an automated file or to transfer it to a service computer center for further order data processing. The legal basis for the processing of personal data is thereby derived from Art. 6 (1) b) GDPR. The tax advisor fulfills the duty to inform according to Art. 13 or 14 GDPR by transmitting further information.
(2) The tax advisor is entitled to appoint a data protection officer in fulfillment of their obligations under the GDPR and the Federal Data Protection Act (BDSG). Insofar as this data protection officer is not already subject to the duty of confidentiality in accordance with Section 2 (2), the tax consultant must ensure that the data protection officer undertakes to maintain data secrecy upon commencement of their activities.
(3) Insofar as the client wishes to communicate with the tax consultant via a fax connection or via an e-mail address, the client must contribute to the costs of setting up and maintaining the use of signature procedures and encryption procedures of the tax consultant (e.g. for the acquisition and installation of necessary software or hardware).
(1) The client has the right to have any defects rectified. The tax consultant must be given the opportunity to rectify the defect. The client has the right - if and insofar as the mandate is a service contract within the meaning of §§ 611, 675 BGB (German Civil Code) - 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 defects claimed within a reasonable period of time or if they refuse to rectify the defects, the client may have the defects rectified by another tax consultant at the tax consultant's expense or, at their option, demand a reduction in the remuneration or withdraw from the contract.
(3) Obvious inaccuracies (in particular typing errors, arithmetical 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 justified interests of the tax consultant take precedence over the interests of the client.
(1) The liability of the tax consultant and their vicarious agents for damage resulting from one or - in the case of a uniform sequence of damage - from several breaches of duty on the occasion of the performance of an assignment is limited to € 1,000,000.00 (in words: one million euros). 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 arising 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 of the formation of a partnership and the assumption of the assignment by the partnership as well as for new partners joining the partnership. Furthermore, the limitation of liability shall also apply to third parties insofar as these fall within the scope of protection of the client-lawyer relationship; § 334 BGB (Civil Law Code) 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 - insofar as expressly provided otherwise.
(2) 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.
(1) The client is obliged to cooperate insofar as this is necessary for the proper completion of the assignment. In particular, he/she shall hand over to the tax consultant, without being requested to do so, all 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 verbal communications from the tax consultant and to consult them in the event of doubt.
(2) The client must refrain from anything which could impair the independence of the tax consultant or their 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 order.
(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 is also entitled to use them only to that extent. The client may not 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 § 7 (1) to (4) or otherwise, or if the client defaults in accepting the service offered by the tax consultant, the tax consultant shall be entitled to terminate the contract without notice (cf. § 12 (3)). The tax consultant's claim to compensation for the additional expenses incurred 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.
The services provided by the tax consultant shall constitute their intellectual property. They are protected by copyright. The work result may only be passed on outside its intended use with the prior written consent of the tax consultant.
(1) The remuneration (fees and reimbursement of expenses) of the tax consultant for their professional activity according to § 33 StBerG is calculated according to the Tax Consultant Remuneration Ordinance (StBVV). A higher or lower remuneration than the statutory remuneration can be agreed upon 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 consultant (section 4 (3) StBVV).
(2) For activities which are not regulated in the Remuneration Ordinance (e.g. § 57 Para. 3 Nos. 2 and 3 StBerG), the agreed remuneration shall apply, otherwise the statutory remuneration provided for this activity, otherwise the usual remuneration (§§ 612 Para. 2 and 632 Para. 2 BGB).
(1) A set-off against a claim for remuneration of the tax consultant is only permissible with undisputed or legally established claims.
(2) 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 by the client, 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 notify the client in good time of their intention to discontinue their work, if the client may suffer disadvantages as a result of discontinuing the tax consultant's work.
(1) The contract shall end upon performance of the agreed services, upon expiry of the agreed term or upon termination. The contract shall not be terminated by the death or incapacity of the principal or, in the case of a company, by its dissolution.
(2) The contract may - if and to the extent that 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 relationship with fixed remuneration, Section 627 (1) of the German Civil Code (BGB); the termination shall 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 that 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 shall be obliged to hand over to the client everything that they receive or have received for the execution of the assignment and everything that they obtain from the business assignment. Furthermore, the tax consultant shall be obliged to provide the client with information on the status of the matter upon request and to render an account.
(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 contractual relationship, the documents must be collected from the tax consultant.
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 shall be required.
(1) The tax consultant shall keep the reference files for a period of 10 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 6 months of receiving it.
(2) Hand files within the meaning of paragraph 1 are only the documents which the tax consultant has received from or on behalf of the client on the occasion of their professional activity, but not the correspondence between the tax consultant and the client and for the documents which the latter has already received in original or copy, as well as for the working papers prepared for internal purposes (§ 66 paragraph 3 StBerG).
(3) At the request of the client, but at the latest after completion of the assignment, the tax consultant must return 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 are returned to the client.
(4) The tax consultant has the right to refuse to hand over the reference files until the tax consultant has been satisfied in respect of his fees and expenses. This shall not apply if the withholding of the reference files and the individual documents would be unreasonable under the circumstances (Section 66 (2) sentence 2 StBerG).
(1) The law of the Federal Republic of Germany shall apply exclusively to the order, its execution and the claims arising therefrom.
(2) 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.
(3) The tax consultant is not prepared to participate in dispute resolution proceedings before a consumer arbitration board (§§ 36, 37 VSBG).
(1) If individual provisions of these terms and conditions of assignment are or become invalid, this shall not affect the validity of the remaining provisions.
(2) Amendments and/or supplements to these terms and conditions of contract must be made in writing. This shall also apply to the waiver of this written form requirement itself.
Status: November 2019