The FG Hamburg ruled on October 11, 2017 that the conditions under which a deferment account was approved are among the tax obligations within the meaning of § 69 AO, which lead to the liability of the managing director in the event of non-performance. Managing directors should be aware of this liability risk.
Obligation to report and obligation to provide for funds
In the underlying case, one company had been granted an ongoing security-free deferral of payment subject to notification obligations. If a continuous deferral of payment is granted, all taxpayers must ensure in particular that the deferred payment amounts can be paid when due without any special obligation being required.
Breach of duty by managing director
According to FG Hamburg, the managing director did not report the impending liquidity requirements of the tax debtor and thus violated this requirement and his duty to provide for funds. A managing director is grossly negligent if he uses the deferment account and the payment of import duties on the due date depends on an investor actually providing the promised liquidity. In particular, he would be in breach of his duty to provide funds if, in times of crisis, he made the fulfilment of tax liabilities dependent on circumstances which he could not influence.
Managing directors are personally liable
In a decisive case this led to the personal liability of the managing director for the tax loss. Managing directors should keep this liability risk in mind when dealing with an ongoing deferral of payment and take appropriate precautions to minimise risk.
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