Conditions

General terms and conditions for tax advisors and tax advisory professional practice companies with declaration of consent

As of: October 2023

The following “General Terms and Conditions” apply to contracts1) between tax advisors2) and tax advisory professional 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 order

1. The order placed is decisive for the scope of the services to be provided by the tax advisor. The order is carried out in accordance with the principles of proper professional practice, taking into account the relevant professional standards and professional duties (see 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 advisor is not obliged to inform the client of the change or the resulting consequences.
4. Checking the accuracy, completeness and correctness of the documents and figures handed over to the tax advisor, in particular the bookkeeping and balance sheet, is only part of the order if this has been agreed in writing. The tax advisor will assume that the information provided by the client, in particular numerical information, is correct. If he discovers obvious inaccuracies, he will point this out to the client.
5. The order does not constitute a power of attorney for representation before authorities, courts or other bodies. This must be granted separately. If it is not possible to coordinate with the client regarding the lodging of legal remedies or legal remedies due to the client’s absence, the tax advisor is entitled to act within the deadline in case of doubt.

2. Obligation of confidentiality

1. In accordance with the law, the tax advisor is obliged to maintain secrecy about all facts that come to his knowledge in connection with the execution of the order, unless the client releases him from this obligation. The obligation of confidentiality continues even after the contractual relationship has ended. The duty of confidentiality also applies to the tax advisor’s employees to the same extent.
2. The obligation of confidentiality does not apply if disclosure is necessary to protect the legitimate interests of the tax advisor. The tax advisor is also released from the obligation of confidentiality to the extent that he is obliged to provide information and cooperate according to the insurance conditions of his professional liability insurance.
3. Statutory rights to information and to refuse to testify, among other things. according to Section 102 AO, Section 53 StPO and Section 383 ZPO, remain unaffected.
4. The tax advisor is released from the obligation of confidentiality to the extent that this is necessary to appoint a general representative (Section 69 StBerG) or to carry out a certification audit in the tax advisor’s office and the persons working in this regard have themselves been informed of their obligation to maintain confidentiality. The client agrees that the general representative or the certifier/auditor may inspect his file – created and maintained by the tax advisor.

3. Participation of third parties

The tax advisor is entitled to use employees and, under the conditions of Section 62a StBerG, external service providers (in particular data processing companies) to carry out the order. The involvement of expert third parties in processing the mandate (e.g. other tax advisors, auditors, lawyers) requires the consent and order of the client. The tax advisor is not entitled or obliged to involve these third parties without the client’s instructions.

4. Electronic communication, data protection³⁾

1. The tax advisor is entitled to collect the client’s personal data automatically as part of the orders placed and to process it in an automated file or to transfer it to a service data center for further order data processing.
2. The tax advisor is entitled to appoint a data protection officer to fulfill his obligations under the GDPR and the Federal Data Protection Act. Unless this data protection officer is already subject to a duty of confidentiality in accordance with Section 2 Paragraph 1 Sentence 3, the tax advisor must ensure that the data protection officer undertakes to maintain data secrecy upon taking up his duties.
3. The client is advised that the use of electronic means of communication (e-mail, etc.) can involve risks for the confidentiality of communication. The client agrees to the use of electronic means of communication by the tax advisor.

5. Elimination of defects

1. If there are any deficiencies, the tax advisor must be given the opportunity to make improvements.
2. If the tax advisor does not correct the alleged defects within a reasonable period of time or if he refuses to rectify the defects, the client can have the defects remedied by another tax advisor at the tax advisor’s expense or, at his discretion, demand a reduction in the remuneration or cancellation of the contract .
3. Obvious inaccuracies (e.g. typographical errors, calculation errors) can be corrected by the tax advisor at any time, including to third parties. The tax advisor may correct other defects to third parties with the consent of the client. Consent is not required if the legitimate interests of the tax advisor take precedence over the interests of the client.

6. Liability

1. The liability of the tax advisor and his vicarious agents for damage resulting from one or – if the damage is uniform – from several breaches of duty when fulfilling an order is limited to €10,000,0004) (in words: ten million €). 5) 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 resulting from injury to life, body or health. The limitation of liability applies to the entire activity of the tax advisor for the client, and in particular to any expansion of the content of the order; There is no need to agree again on the limitation of liability. The limitation of liability also applies to third parties insofar as they fall within the scope of protection of the attorney-client relationship; § 334 BGB is expressly not waived in this respect. Individual contractual liability limitation agreements take precedence over this regulation, but leave the effectiveness of this regulation unaffected – unless expressly stipulated otherwise.
2. The limitation of liability applies retroactively from the beginning of the mandate relationship or the time of the higher insurance if there is a correspondingly high level of insurance cover and also extends to these cases if the scope of the order is subsequently changed or expanded.
3. Providing oral information is not one of the tax advisor’s main contractual services. In particular, they pose the risk of an incomplete oral presentation of the facts to be assessed as well as misunderstandings between the tax advisor and the client. It is therefore agreed that the tax advisor is only responsible for information provided in text form and liability for oral information provided by the tax advisor or his employees is excluded.
4. Claims for damages by the client, with the exception of those resulting from injury to life, body or health, expire 18 months from the client’s knowledge or grossly negligent ignorance of the claims, but no later than five years after the claim arose. The deadline that ends earlier is decisive.

7. Obligations of the client; Failure to cooperate and delay in acceptance by the client

1.  The client is obliged to cooperate to the extent necessary for the proper completion of the order. In particular, he must, without being asked, hand over to the tax advisor all documents necessary for the execution of the order in full and in such a timely manner that the tax advisor has an appropriate processing time. The same applies to information about all processes and circumstances that may be important for the execution of the order. The client is obliged to take note of all communications from the tax advisor and to consult if there are any questions.
2. The client must refrain from anything that could impair the independence of the tax advisor or his vicarious agents.
3. The client undertakes to only pass on the work results of the tax advisor with his consent, unless the content of the order already indicates consent to pass them on to a specific third party.
4. If the tax advisor uses data processing programs for the client, the client is obliged to follow the tax advisor’s instructions on installing and using the programs. Furthermore, the client is obliged to use the programs only to the extent prescribed by the tax advisor and is only entitled to use them to the extent specified. The client may not distribute the programs. The tax advisor remains the owner of the usage rights. The client must refrain from anything that conflicts with the tax advisor’s exercise of the right to use the programs.
5. If the client fails to cooperate in accordance with Section 7 Paragraphs 1 to 4 or otherwise or if he defaults on accepting the service offered by the tax advisor, the tax advisor is entitled to terminate the contract without notice. The tax advisor’s right to compensation for the additional expenses incurred as a result of the delay or failure to cooperate on the part of the client as well as the damage caused remains unaffected, even if the tax advisor does not make use of the right of termination.

8. Copyright Protection

The tax advisor’s services represent his intellectual property. They are protected by copyright. A transfer of work results outside of the intended use is only permitted with the prior consent of the tax advisor in text form.

9. Compensation, invoicing, advance payments and offsetting

1. The remuneration (fees and reimbursement of expenses) of the tax advisor for his professional activity in accordance with Section 33 StBerG is determined in accordance with the Tax Advisor Remuneration Ordinance (StBVV). A higher or lower remuneration than the statutory remuneration can be agreed in text form. Agreeing on a lower remuneration is only permitted in out-of-court matters. It must be proportionate to the tax advisor’s performance, responsibility and liability risk.
2. The client agrees to an invoice from the tax advisor in text form.
3. For activities that are not regulated in the StBVV (e.g. Section 57 Paragraph 3 Nos. 2 and 3 StBerG), the agreed remuneration applies, otherwise the statutory remuneration provided for this activity, otherwise the usual remuneration (§ § 612 Paragraph 2 and 632 Paragraph 2 BGB).
4. Offsetting against the tax advisor’s claim for remuneration is only permitted with undisputed or legally established claims. Any claims by the client for reimbursement of any remuneration paid expire 18 months after the client receives the invoice.
5. The tax advisor can request an advance payment for fees and expenses that have already been incurred and are expected to arise. If the required advance is not paid, the tax advisor can, after prior notice, stop working for the client until the advance is received. The tax advisor is obliged to inform the client in a timely manner of his intention to stop the activity if the client could suffer disadvantages from ceasing the activity. It is possible for the tax advisor to offset advance payments against all claims due from the contractual relationship, regardless of the activity for which the advance payment was requested.
6. The client is in default if he does not make payment within 14 days of the invoice date.

10. Termination of the Agreement

1.  The contract ends when the agreed services are fulfilled, when the agreed term expires or when the contract is terminated. The contract does not end with death, with the client becoming incapacitated or, in the case of a company, with its dissolution.
2. The contract can – if and to the extent that it constitutes a service contract in the sense of. S.d. §§ 611, 675 BGB – can be terminated extraordinarily by each contractual partner, unless it is an employment relationship with fixed remuneration, § 627 Paragraph 1 BGB; The termination must be made in text form. If this is to be deviated from in individual cases, an agreement between the tax advisor and the client is required.
3. Upon termination of the contract, the client must immediately hand over or delete to the tax advisor the data processing programs used by the client to carry out the order, including copies made and other program documents.
4. After the contractual relationship has ended, the documents must be collected from the tax advisor.
5. If the order ends before it has been fully executed, the tax advisor’s claim to remuneration is based on the legal regulations, in particular Section 12 Paragraph 4 StBVV. If this is to be deviated from in individual cases, a separate agreement in text form is required.

11. Right of retention with regard to work results and documents

1. The tax advisor can make and retain copies or photocopies of documents that he returns to the client or can do this by means of electronic data processing.
2. The tax advisor can refuse to hand over the documents until his fees and expenses have been satisfied (Section 66 Paragraph 3 StBerG). A contractual right of retention is deemed to have been agreed with regard to the work results.

12. Place of jurisdiction, place of performance, information VSBG

1. German law applies exclusively to the order, its execution and any resulting claims. If the client is a merchant, a legal entity under public law or a special fund under public law, the place of performance and place of jurisdiction is the professional branch of the tax advisor. This also applies in the event that the client moves his place of residence or usual place of residence abroad after placing the order or the place of residence or usual place of residence is not known at the time the action is filed.
2. The tax advisor is – not – prepared to take part in a dispute resolution procedure before a consumer arbitration board (§§ 36, 37 VSBG).6)

 

13. Effectiveness in the event of partial invalidity

If individual provisions of these terms and conditions are or become ineffective, the effectiveness of the remaining provisions will not be affected.

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1) For contracts concluded online with consumers, form no. 1130 “Model cancellation policy, sample declaration of consent and sample cancellation form for consumer mandates concluded online” must be observed. Please refer to the further information in DWS information sheet No. 1001

2) The term “tax advisor” also includes tax representatives.

3) In order to process personal data, there must also be a relevant legal basis under Article 6 of the GDPR. The tax advisor must also fulfill the information obligations in accordance with Article 13 or 14 GDPR by submitting additional information. The information and explanations in the DWS information sheet No. 1007 on the DWS forms No. 1005 “Data protection information for clients” and No. 1006 “Data protection information on the processing of employee data” must be observed.

4) Please enter amount. In order to be able to make use of this regulation, an amount of at least €1 million must be declared for a sole proprietorship and the contractual insured sum must be at least €1 million for the individual claim; otherwise, paragraph 6 must be deleted. Higher amounts apply to professional practice companies (see note5). Please refer to the further information in DWS information sheet No. 1001.

5) According to Section 55f Paragraph 1 StBerG, every professional practice company, regardless of legal form, is obliged to take out and maintain professional liability insurance. The amount of partnership coverage required is regulated differently, depending on whether the legal form limits liability for natural persons (see Section 55f Paragraphs 2 and 3 StBerG). According to Section 67a Paragraph 1 Sentence 1 No. 2 StBerG, liability can be limited by general terms and conditions to
four times the amount of the minimum insured sum if insurance cover exists to this extent. The contractual sum insured must correspond to the specifications regarding the individual case of damage; otherwise, paragraph 6 must be deleted. Reference is made to the information in DWS information sheet No. 1001.

 

6) If it is desired to carry out dispute resolution proceedings before the consumer arbitration board, the word “not” must be deleted. In this case, reference must be made to the responsible consumer arbitration board, stating its address and website.
*Here and below, delete what is not applicable and fill in what is applicable.
© 10/2023 DWS Steuerberater Medien GmbH · Order service: PO Box 02 35 53 · 10127 Berlin · Telephone 030/2 88 85 66 · Fax 030/28 88 56 70 · Email: info@dws-medien.de · Internet: www.dwsmedien.de
All rights reserved. It is not permitted to reprint the products in whole or in part or to reproduce them by photomechanical means. This product has been processed with the utmost care, but no liability can be assumed for the contents. For reasons of better readability, the language forms male, female and diverse (m/f/d) are not used at the same time. All personal names apply equally to all genders.