Insights
TAX & BUSINESS
Tax Confidentiality: Abolition of Official Secrecy
Official secrecy has been abolished and, at the same time, the duty to provide information introduced. The so‑called tax secrecy is likely to be little affected by the legislative change.
In the Federal Tax Code (Bundesabgabenordnung) it was clarified that the provision also applies to legal entities. The disclosure or use of data is only permitted under certain conditions, such as within statutory procedures (e.g. tax criminal proceedings). Furthermore, a transfer is only possible if it is based on a legal basis or if it results from a legitimate request for information under the Freedom of Information Act (Informationsfreiheitsgesetz). Even here there are exceptions to ensure the protection of tax secrets. The duty of the tax authorities to maintain confidentiality of tax data is therefore essentially retained.
Exclusion of the public in tax criminal proceedings
Until now, in tax criminal proceedings the public could be excluded at the request – and without further justification – of the accused. This possibility will cease in the future, aligning the procedure with general criminal law and avoiding an unjustified special treatment of tax offenders. An exclusion will still be possible where circumstances need to be examined that fall under the tax‑law confidentiality obligation. As such matters are usually dealt with in tax criminal proceedings, in practice nothing substantial is likely to change.
Publication of decisions of the Federal Fiscal Court (BFG)
In principle, in view of the rule‑of‑law interest in as complete a publication as possible, the decisions of the BFG must be published online free of charge (Findok), with personal data (such as details of private and family life, tax secrecy) rendered anonymous. A decision must not be published, if important private or public interests oppose it or confidentiality reasons exist. Previously, decisions could also remain unpublished if they were “without particular legal significance”. This provision has been abolished, as the court’s assessment of whether this condition was met was subjective and not verifiable.
Exclusion of the public in tax criminal proceedings
Until now, in tax criminal proceedings the public could be excluded at the request – and without further justification – of the accused. This possibility will cease in the future, aligning the procedure with general criminal law and avoiding an unjustified special treatment of tax offenders. An exclusion will still be possible where circumstances need to be examined that fall under the tax‑law confidentiality obligation. As such matters are usually dealt with in tax criminal proceedings, in practice nothing substantial is likely to change.
Publication of decisions of the Federal Fiscal Court (BFG)
In principle, in view of the rule‑of‑law interest in as complete a publication as possible, the decisions of the BFG must be published online free of charge (Findok), with personal data (such as details of private and family life, tax secrecy) rendered anonymous. A decision must not be published, if important private or public interests oppose it or confidentiality reasons exist. Previously, decisions could also remain unpublished if they were “without particular legal significance”. This provision has been abolished, as the court’s assessment of whether this condition was met was subjective and not verifiable.