Legal representatives of legal entities such as managing directors of a GmbH should be aware of their own liability for the company’s tax liabilities in accordance with §§ 34, 69 AO. Two rulings by the FG Düsseldorf of 22.11.2016 illustrate this once again.
Liability of the managing directors for tax liabilities
One of the tax obligations of the managing director is to ensure that taxes are paid from the funds administered by him for the GmbH. The funds for this must also be held ready in advance for tax liabilities that only become due in the future. In the event that the funds are not sufficient to pay all existing debts simultaneously, the jurisdiction of the Federal Fiscal Court is based on the principle of pro rata repayment. Tax liabilities are not to be repaid primarily, but to the same extent as other liabilities.
Particularities in the field of customs duties and excise duties
However, in the area of products subject to customs duty and excise duty, special features may arise. The BFH is exempt from the principle of pro rata repayment in the case of an open customs warehouse and in the case of use of a deferment procedure for import duties pursuant to Art. 224 ff. ZK deviated. In return for the advantages granted by the customs administration, it has a right to prioritised satisfaction.
Judgments of the FG Düsseldorf
The judgements of the FG Düsseldorf of November 22, 2016 make it clear once again that a managing director is also expected to familiarize himself with the commercial law and tax requirements that are imposed on the performance of the managing director’s duties and, if necessary, to make use of professional advice. He cannot invoke his ignorance of the obligation to provide for the payment of taxes, so seek professional advice in good time.