General Terms and Conditions of Business: 1 August 2004
Unless otherwise expressly agreed in writing or required by mandatory statute, the following General Terms and Conditions of Business apply to agreements between certified tax consultants, tax advisers, companies of accountants (hereinafter “Tax Consultant”) and their clients.
1. Scope and implementation of the mandate
(1) The scope of the services to be provided by the Tax Consultant shall be as set out in the mandate.
(2) The mandate shall be executed in accordance with the principles of professional ethics.
(3) The Tax Consultant will assume that the facts and information, in particular any figures, provided by the client are correct. If the client discovers any inconsistencies or errors he is obliged to point these out.
(4) Under this mandate verifying that any documents and figures provided are correct, complete and in good order, in particular with regard to bookkeeping and balance sheet records, does not form part of the services to be provided unless specifically agreed in writing.
(5) This mandate does not authorise the Tax Consultant to represent the client at official authorities, before the courts or other agencies. Such services must be subject to a separate agreement. If, owing to the absence of the client, it is not possible to discuss legal remedies or appeals the Tax Consultant, if in doubt, is entitled and obliged to take action to ensure that deadlines are met.
(1) The Tax Consultant is bound by law to observe confidentiality with regard to any facts which become known to her in carrying out this mandate, unless the client has released her from this obligation in writing. The confidentiality obligation continues to apply even after the contractual relationship has ended.
(2) The confidentiality obligation applies equally to the Tax Consultant’s staff.
(3) The confidentiality obligation does not apply where disclosure is necessary to preserve the legitimate interests of the Tax Consultant. The Tax Consultant is also released from her confidentiality agreement if required to provide information and to cooperate under the terms of her professional liability insurance policy.
(4) This does not affect statutory rights to refuse information and make statements under § 102 of the German Tax Code (Abgabenordnung), § 53 of the Code of Criminal Procedure (Strafprozeßordnung), § 383 of the German Code of Civil Procedure (Zivilprozessordnung).
(5) Reports, expert reports and other written statements regarding the results of the activities of third parties will only be disclosed to third parties with the consent of the client.
3. Involvement of third parties
(1) The Tax Consultant is entitled to use the services of employees, expert third parties and data-processing companies.
(2) When using the services of such third parties and data-processing companies the Tax Consultant shall ensure that they observe the confidentiality provisions set out in 2. (1).
(3) If a mandate is granted the Tax Consultant is entitled to grant representatives (§ 69 of the Tax Consultancy Act) and trustees (§ 71 of the Tax Consultancy Act) access to the files in the meaning of § 66 (2) of the Tax Consultancy Act.
4. Remedying defects
(1) The client is entitled to have any defects remedied. The Tax Consultant shall be given the opportunity to remedy any defects.
(2) If the Tax Consultant has not remedied the defects within a reasonable period or if she refuses to do so, the client may have them remedied by another tax consultant at the expense of the Tax Consultant or may, at his discretion, demand either a reduction in price or that the agreement be rescinded.
(3) The Tax Consultant may correct obvious errors, such as typographical or arithmetical errors, at any time vis-à-vis third parties. The Tax Consultant may correct other defects vis-à-vis third parties with the consent of the client. This consent is not necessary if the legitimate interests of the Tax Consultant have precedence over the interests of the client.
(1) The Tax Consultant is liable for her own fault and the fault of her vicarious agents.
(2) Any claim against the Tax Consultant on the part of the client for compensation of a loss pursuant to (1) which has been caused by negligence shall be limited to EUR 1,000,000 (in words: one million euros).
(3) The liability limitation does not apply to losses arising from injury to life, the body or health.
(4) If, in an individual case, an exception is made hereto – in particular if liability is to be limited to a lower amount than that stated in (2) – this must be agreed upon in writing. Such agreement must be made separately and given to the client along with these General Terms and Conditions of Business.
(5) The client’s claim to compensation becomes statute-barred three years from the date on which the claim arose unless it is subject to a shorter limitation period by statute.
(6) The provisions of (1) to (4) also apply to persons other than the client if, in an individual case, this gives rise to contractual or pre-contractual relationships between the Tax Consultant and these persons.
6. Duties of the client
(1) The client is obliged to cooperate to the extent that this is necessary for the proper handling of the matter. In particular, the client is obliged to provide the Tax Consultant with whatever documents are necessary to execute the mandate, complete and in due time in a manner which leaves the Tax Consultant sufficient time for the work. The same applies to notification of all incidents and circumstances which are of significance for executing the mandate. The client is obliged to take note of all written and oral information provided by the Tax Consultant and to clarify these if in doubt.
(2) The client shall refrain from anything which could impair the impartiality of the Tax Consultant or his vicarious agents.
(3) The client agrees only to pass on the results of work of the Tax Consultant with his written consent in as far as the nature of the mandate does not already imply consent to forward these to a specific third party.
(4) If the Tax Consultant uses data processing programs at the premises of the client, the client is obliged to observe any instruction given by the Tax Consultant on the installation and use of the programs. Further, the client is obliged and entitled only to copy the programs to the extent specified by the Tax Consultant. The client is not permitted to disseminate the programs.
(5) The Tax Consultant remains the owner of the rights of use. The client shall not do anything which could prevent the Tax Consultant from exercising her rights of use in the programs.
7. Failure of the client to cooperate and default with regard to acceptance of the Tax Consultant’s offer
(1) If the client fails to meet one of his cooperation obligations under Section 6. or if he does not accept the services offered by the Tax Consultant in good time the Tax Consultant is entitled to set a reasonable deadline stating that she will refuse to continue performance of the agreement after this deadline has expired.
(2) Once this deadline has passed without result the Tax Consultant may terminate the agreement without notice (see Section 10. (3)). This has no effect on the right of the Tax Consultant to reimbursement of the additional costs incurred as a result of the client’s default or failure to cooperate and the loss thereby caused even if the Tax Consultant does not exercise his right to terminate the agreement.
(1) The remuneration (fees and reimbursement of outlays) of the Tax Consultant for her services pursuant to § 33 of the Tax Consultancy Act shall be based on the Fee Regulation for Certified Tax Consultants, Tax Advisers, Companies of Accountants.
(2) Services which are not covered by the Fee Regulation (e.g. § 57 (3) nos. 2 and 3 of the Tax Consultancy Act), shall be as agreed between the parties, otherwise the usual remuneration shall apply (§ 612 (2) and § 632 (2) of the German Civil Code).
(3) Only claims which are undisputed or final and absolute can be offset against a remuneration claim of the Tax Consultant.
9. Advance payment
(1) The Tax Consultant may demand an advance payment for fees and outlays which have already arisen or which are likely to arise.
(2) If the advance which has been demanded is not paid the Tax Consultant may, subject to prior announcement, suspend further work for the client until the advance payment is received. The Tax Consultant is obliged to notify the client in good time of her intention to suspend work if suspension of the work may be to the detriment of the client.
10. Termination of the agreement
(1) The agreement ends when the agreed services have been performed, by expiry of the agreed term of the agreement or by termination. The agreement ends when the client dies, ceases to have legal capacity or, if the client is a company, when the company is wound up.
(2) If and to the extent that the agreement is a service contract (Dienstvertrag) in the meaning of §§ 611, 675 of the German Civil Code the agreement may be terminated without notice pursuant to §§ 626ff. of the German Civil Code by either party; notice of termination must be in writing. If, in an individual case, the parties agree to derogate from this provision this must be set out in writing; such an agreement must be made separately and given to the client along with these General Terms and Conditions of Business.
(3) If the agreement is terminated by the Tax Consultant, in order to avert legal losses on the part of the client the Tax Consultant must carry out whatever acts are reasonable and which cannot be postponed (e.g. application for the extension of approaching deadlines). The Tax Consultant also has liability for these acts under Section 5. of this agreement.
(4) The Tax Consultant is obliged to return to the client anything she receives or has received in handling this mandate. The Tax Consultant is also obliged to give the client the communications necessary, to provide on request information on the status of the matter and to account for her actions.
(5) When this agreement ends the client shall return to the Tax Consultant any data processing programs, including any program documentation, which have been used at his premises for the purpose of executing this mandate and delete them from the hard disk without undue delay. If the agreement is terminated by the Tax Consultant the client may, however, retain the programs for an agreed period to the extent that this is absolutely necessary to avoid legal detriment.
(6) After the legal relationship between the client and the Tax Consultant has ended the documents must be collected from the Tax Consultant.
11. Claim for remuneration in the event of premature termination of the agreement
If the mandate ends before it has been completely performed the Tax Consultant shall base her claim for remuneration on statutory provisions. If, in an individual case, the parties agree to not to apply the statutory provisions, this must be set out in a separate written agreement which must be handed to the client along with these General Terms and Conditions of Business when the mandate agreement is concluded.
12. Keeping, returning and retaining documents and the results of work
(1) The Tax Consultant shall keep her files for seven years after the mandate has ended. However, this obligation ends earlier if the Tax Consultant has sent the client a written request to take receipt of the file and the client has not complied with this request within six months of having received it.
(2) In the meaning of this provision a file shall be understood to be all documents which the Tax Consultant has received from or for the client in connection with the services provided. However, it does not include the correspondence between the Tax Consultant and the client or the documents which the client has already received as an original or copy nor does it include working documents which have been prepared for internal purposes.
(3) At the request of the client, but no later than the end of the mandate, the Tax Consultant shall give the client the file within a reasonable period. The Tax Consultant may make and keep duplicates or photocopies of documents which she returns to the client.
(4) The Tax Consultant may refuse to hand over the results of her work and the files until her fee claims have been paid and her outlays have been reimbursed. This does not apply if, in the circumstances, retention would constitute a breach of good faith in particular owing to the relatively low level of the amounts owed. The client is entitled to withhold a reasonable portion of the remuneration until any defects reported by the client within the specified period have been remedied.
13. Applicable law and place of performance
(1) The mandate, performance thereof and any resultant claims shall be subject to German law only.
(2) Unless otherwise agreed, the place of performance shall be the place of the Tax Consultant’s registered office or the another office the Tax Consultant.
(3) The English version of these General Terms and Conditions of Business is for information purposes only. The German version is authoritative.
14. Validity in the event of partial nullity
If any provisions of these General Terms and Conditions of Business should be or become invalid, this shall have no effect on the validity of the other provisions. The invalid provision shall be replaced by a valid provision which most closely reflects the original intent.
15. Amendments and additions
Any amendments or additions to these General Terms and Conditions must be made in writiing.
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