Is a personal income tax account
Liability of the limited partner, paid-in contribution
The independent finance senate, through its chairman, Hofrat Dr. Kittinger and the other members Court Councilor Mag.Regine Linder, Reinhold Haring and Lorenz Hoffmann in the presence of the secretary Diana Engelmaier on the appeal of the Bw., From June 9, 2002 against the decision of the tax office Gänserndorf Mistelbach of May 15, 2002 regarding liability according to § 12 BAO after the appeal hearing on April 6, 2006 in 1030 Vienna, Vordere Zollamtsstraße 7, decided:
The appeal is dismissed as unfounded.
Reasons for decision
With the decision of May 15, 2002, the applicant (Bw.) Was called upon to be liable in accordance with § 12 BAO as a liable limited partner for the outstanding sales tax 1997 of the KEG in the amount of the limited partner contribution of € 7,267.00.
In the appeal filed on June 9, 2002, the Bw. Submitted that the provisions of §§ 12 BAO and 171 Paragraph 1 HGB would provide for a liability of the limited partner of a KEG up to the amount of his liability contribution, but this would only be obliged to pay the liability contribution once, irrespective of the creditor. On the basis of a similar declaration of liability, but at that time under a tax number in the Bw., But for the same object, namely the debt of the personally liable general partner, Mr. WC, or the KEG, the tax office would have obtained a liability notice in 1999 and the properties of the Bw. in G. and S. encumbered. As a result of the payment of the amount of ATS 72,878.00, the notices of lien would have been deleted again. The fact that the tax number of the KEG and the other time that of the Bw. Would have been used for the liability notices would not change the fact that the Bw. Would now have been called for the second time for liability.
As evidence, the Bw. Brought the declaration of discontinuation and cancellation into the meeting and requested that they be questioned as a party and that Mr. W.C. .
The Bw. Therefore submitted the application to remedy the contested decision due to the illegality of the content with regard to a partial amount of ATS 72,878.00 (€ 5,296.37).
The tax office rejected the appeal with a preliminary appeal decision of May 25, 2005 and stated that, according to the files, a further notice of liability, as claimed in the appeal, was not evident. The mentioned lien would have affected the arrears on the income tax account of the Bw., Whereas the contested notice of liability would have affected the unpaid sales tax of the KEG.
On the other hand, in a letter dated June 10, 2005, the Bw applied for the appeal for a decision by the tax authority of the second instance and added that the liability account from a KEG would have been exhausted even if it had not been reduced for legal reasons under financial law.
On the basis of a proviso by the tax office to object to the reduction of the liability account through a civil law liability claim, the administration announced in a letter dated January 9, 2006 that the tax office had issued a tax number in 1999 for the security the claim in the amount of ATS 72,878.00, the reservation of the lien on the property of the Bw. would have been made.
In the opinion of the Bw., However, this would prove that no decision had been given that would legally justify this claim. It would therefore not be clear in favor of which tax claim this lien would have been established. Rather, it would be established that the claim in favor of which the lien would have been obtained would not have existed legally at this point in time, since the lien would otherwise have been incorporated and not just noted. If the claim had affected an income tax claim, a further income tax assessment would have been required, as it would only have arisen legally.
In fact, the Bw. Would be employed as a kindergarten teacher and would therefore not be subject to income tax at all. However, an income tax assessment that would legitimize the claim would not have been issued either before or after the pre-registration of the lien.
Nevertheless, the Bw. Would have paid the amount in question to the tax office in order not to know that their properties would be encumbered. The deletion of the lien would also have occurred due to the payment. However, Mareriell would have referred the asserted claim to the liability that the Bw would have met due to its position as a limited partner in the KEG. For this reason, the tax office would have noted the claim as a claim on the income tax account of the Bw. Before issuing the notice of liability, without ever issuing an income tax assessment.
The only debt which the Bw. Accrued to the Republic of Austria and which would have arisen in the course of assessment and not by way of deduction from their employee salaries is the liability in question. Therefore the applications for the procurement of the file St. provided, from which the determination can be made that the justification of this claim would not have been made, as well as offsetting the payment in question against the liability amount.
In addition, the tax office issued a letter dated January 12, 2006, according to which the notation of the lien dated July 22, 1999 would affect the income tax account of the Bw. The arrears of ATS 72,878.00 would have been made up of 1997 income tax, a late surcharge, an advance income tax payment and a compulsory penalty on this key date. With the contested notice of liability, the Bw would only have been claimed for part of the outstanding sales tax of the KEG. Their personally liable partner, Mr. W.C., would also have been sued by decision of May 15, 2002. The previous enforcements have so far been unsuccessful.
The Bw did not comply with the request of the Independent Finance Senate of January 24, 2006 to announce and, if necessary, provide proof of the payment of the limited partner's contribution.
The appeal was considered:
According to Section 12 BAO, the shareholders of associations of persons that are subject to tax as such and have full or partial legal capacity under civil law without their own legal personality are personally liable for the tax debts of the association of persons. The extent of their liability is based on the provisions of civil law.
A limited partner of a KG or KEG is directly liable to the company's creditors up to the amount of his contribution according to Section 171 (1) HGB. Liability is excluded insofar as the contribution has been made.
The prerequisite for liability according to § 12 BAO is that the person who is called for liability is a partner in the partnership. It is undisputed that the Bw. Limited partner of the KEG with a liability contribution according to the commercial register of ATS 100,000.00 (€ 7,267.28).
The scope of liability is based on the provisions of civil law. Therefore, for the limited partners of a KG or KEG, Section 171 (1) of the German Commercial Code (HGB) is decisive. The amount of the claim is therefore limited to the amount of the capital contribution that has not yet been paid in. In addition, it was found that the expressed liability of € 7,267.00 was covered in the deposit.
Since the Bw. Did not comply with the request to disclose and, if necessary, provide proof of the payment of the limited partner's contribution, it was to be assumed that the capital contribution had not yet been made.
The objection of the Bw. That the limited partner would only be obliged to pay the liability contribution once, irrespective of the creditor, but that it has already been held liable under a tax number in its name for the same item, namely the debt of Mr C. would have been, it must be countered that no further notice of liability was issued to the Bw. The enforcement measures addressed in the appeal and in the letter of January 9, 2006, namely the incorporation of the lien on the property of the Bw., Concerned the arrears on their own tax account as of July 22, 1999. With the contested decision, however, claims are made against the Bw. For unadjusted outstanding sales tax of the KEG. It was therefore not necessary to go into more detail on the submission of the Bw. That even after the deletion of the lien there was no justification by issuing a notification and that the payment on which the deletion was based would be offset against the liability amount.
Although § 12 BAO does not establish any default liability, the subordination of liability to the recovery measures at the company must also be taken into account here. In the course of the exercise of discretion, it was found that the KEG was objectively uncollectible, as enforcement measures that had already been taken repeatedly since 1999 had so far remained unsuccessful.
The fact that the tax office also consulted the limited partner in addition to the managing general partner with unlimited liability does not mean that the discretion was not exercised within the framework prescribed by law, since the previous enforcements with the general partner were also unsuccessful.
Due to the existence of the legal requirements of § 12 BAO, the claim against the Bw. As liable for the tax liabilities of the KEG was rightly made.
It was therefore to be decided according to the ruling.
Vienna, April 6, 2006
- Published in Findok on:
- affected standards:
- Financial criminal law, procedural law, tax
- Liability, partnership, limited partner, deposit, paid up
- System data:
- Findok no: 21810.1, taken on: 05/05/2006 10:13:44, last changed on: 23/02/2009, document ID: f1be4383-8188-4cd4-9ff4-52c77ccce119, segment ID: 060af57f-ff22-412b- 81ca-306909d05bb9
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