General Terms and Conditions of Business - KOLOSSA Wirtschaftskanzlei

General Terms and Conditions

For those of you who like the details.

The following „General Terms and Conditions“ apply to contracts¹ between tax advisors² and tax consulting firms (hereinafter referred to as „tax consultants“) and their clients, unless otherwise expressly agreed in text form or prescribed by law.

1. Scope and execution of the order

(1) The scope of the services to be rendered by the tax adviser shall be determined by the assignment given. The assignment shall be carried out in accordance with the principles of proper professional practice and in compliance with the relevant professional standards and professional duties (cf. StBerG, BOStB).
(2) The consideration of foreign law requires an express agreement in text form.
(3) If the legal situation changes after the final settlement of a matter, the tax adviser is not obliged to inform the client of the change or the resulting consequences.
(4) The audit of the accuracy, completeness and correctness of the documents and figures provided to the tax adviser, in particular the bookkeeping and balance sheet, shall only form part of the engagement if this has been agreed in text form. The tax adviser shall assume that the information provided by the client, in particular the figures, is correct. If the tax adviser discovers any obvious inaccuracies, he shall inform the client accordingly.
(5) The mandate does not constitute a power of attorney for representation before authorities, courts and other bodies. This must be issued separately. If, due to the absence of the client, it is not possible to coordinate with the client on the lodging of legal remedies or appeals, the tax adviser shall be authorised to take action to meet deadlines in cases of doubt.

2. Duty of confidentiality

(1) In accordance with the law, the tax adviser is obliged to maintain confidentiality about all facts that come to his knowledge in connection with the performance of the assignment, unless the client releases him from this obligation. The duty of confidentiality shall continue to apply even after termination of the contractual relationship. The duty of confidentiality shall also apply to the same extent to the tax adviser’s employees.
(2) The duty of confidentiality shall not apply if disclosure is necessary to safeguard the tax adviser’s legitimate interests. The tax adviser is also released from the duty of confidentiality to the extent that he is obliged to provide information and co-operation in accordance with the insurance conditions of his professional liability insurance.
(3) Statutory rights to information and the right to refuse to give evidence pursuant to Section 102 AO, Section 53 StPO and Section 383 ZPO remain unaffected.
(4) The tax adviser shall be released from the duty of confidentiality insofar as this is necessary for the appointment of a general representative (§ 69 StBerG) or for the performance of a certification audit in the tax adviser’s firm and the persons working in this respect have been instructed about their duty of confidentiality. The client agrees that the general representative or the certifier/auditor may inspect the client’s personal file created and maintained by the tax adviser.

3. Involvement of third parties

The tax adviser is authorised to use employees and, under the conditions of § 62a StBerG, external service providers (in particular data processing companies) to carry out the assignment. The involvement of specialised third parties (e.g. other tax consultants, auditors, lawyers) requires the consent and instruction of the client. The tax adviser is not authorised or obliged to involve these third parties without the client’s instruction.

4. Electronic communication, data protection³

(1) The tax adviser is entitled to collect the client’s personal data automatically within the scope of the orders placed and to process it in an automated file or to transfer it to a service computer centre for further order processing.
(2) The tax adviser shall be entitled to appoint a data protection officer in fulfilment of his obligations under the GDPR and the Federal Data Protection Act. Insofar as this data protection officer is not already subject to a duty of confidentiality pursuant to Section 2 (1) sentence 3, the tax adviser shall ensure that the data protection officer undertakes to maintain data secrecy upon taking up his/her duties.
(3) The client is advised that the use of electronic means of communication (e‑mail, etc.) may entail risks to the confidentiality of communication. The client consents to the use of electronic means of communication by the tax adviser.

5. Remedy of defects

(1) In the event of any defects, the tax adviser shall be given the opportunity to rectify them.
(2) Obvious inaccuracies (e.g. typing errors, calculation errors) may be corrected by the tax adviser at any time, including to third parties. The tax adviser may correct other errors vis-à-vis third parties with the consent of the client. Consent is not required if the tax adviser’s legitimate interests take precedence over the client’s interests.

6. Liability

(1) The liability of the tax adviser and his vicarious agents for damages resulting from one or – in the case of uniform damages – several breaches of duty during the fulfilment of an assignment shall be limited to € 250,000 (in words: two hundred and fifty thousand euros)⁴. 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, limb or health. The limitation of liability applies to the entire activity of the tax adviser for the client, i.e. in particular also for an extension of the content of the engagement; a new agreement on the limitation of liability is not required in this respect. The limitation of liability also applies to third parties insofar as they fall within the scope of protection of the client relationship; Section 334 BGB is expressly not waived in this respect. Individual contractual liability limitation agreements shall take precedence over this provision, but shall not affect the effectiveness of this provision unless expressly agreed otherwise.
(2) The limitation of liability shall apply retroactively from the beginning of the client relationship or the time of the high-level insurance, if correspondingly high insurance cover existed, and shall also extend to these cases if the scope of the mandate is subsequently changed or extended.
(3) The provision of verbal information is not part of the tax adviser’s main contractual services. In particular, they harbour the risk of an incomplete oral presentation of the facts to be assessed and of misunderstandings between the tax adviser and the client. It is therefore agreed that the tax adviser is only liable for information provided in text form and that liability for verbal information provided by the tax adviser or his employees is excluded.
(4) Claims for damages by the client, with the exception of those arising from injury to life, limb or health, shall become time-barred 18 months after the client’s knowledge or grossly negligent ignorance of the claims, but no later than five years after the claim arises. The earlier period shall be decisive.

7. Obligations of the client; failure to cooperate and default of acceptance by the client

(1) The client is obliged to co-operate insofar as this is necessary for the proper completion of the assignment. In particular, the client shall provide the tax adviser, without being requested to do so, with all documents necessary for the performance of the engagement in full and in good time to allow the tax adviser a reasonable period of time to complete the engagement. The same applies to information on all processes and circumstances that may be of significance for the execution of the engagement. The client is obliged to take note of all communications from the tax adviser and to consult the tax adviser in case of doubt.
(2) The client shall refrain from doing anything that could impair the independence of the tax adviser or his vicarious agents.
(3) The client undertakes to pass on the results of the tax adviser’s work only with the tax adviser’s consent, unless the content of the engagement already provides consent to pass them on to a specific third party.
(4) If the tax adviser uses data processing programmes on the client’s premises, the client shall be obliged to comply with the tax adviser’s instructions regarding the installation and use of the programmes. Furthermore, the client shall be obliged to use the programmes only to the extent prescribed by the tax adviser and shall be entitled to use them only to that extent. The client may not distribute the programmes. The tax adviser shall remain the owner of the rights of use. The client shall refrain from doing anything that would prevent the tax adviser from exercising the rights of use to the programmes.
(5) If the client fails to co-operate in accordance with Clause 7 (1) to (4) or otherwise, or if he is in default of acceptance of the service offered by the tax adviser, the tax adviser is entitled to terminate the contract without notice. This shall not affect the tax adviser’s claim to compensation for the additional expenses incurred by him as a result of the delay or the client’s failure to co-operate, or for the damage caused, even if the tax adviser does not exercise his right of termination.

8. Copyright protection

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

9. Remuneration, invoicing, advance payment and offsetting

(1) The remuneration (fees and reimbursement of expenses) of the tax adviser for his professional activities in accordance with Section 33 StBerG shall be calculated in accordance with the Tax Adviser Remuneration Ordinance (StBVV). A higher or lower fee than the statutory fee can be agreed in text form. The agreement of a lower fee is only permitted in extrajudicial matters. It must be proportionate to the tax advisor’s performance, responsibility and liability risk.
(2) The client agrees to the tax adviser issuing an invoice in text form.
(3) For activities that are not regulated in the StBVV (e.g. § 57 para. 3 no. 2 and 3 StBerG), the agreed remuneration shall apply, otherwise the statutory remuneration provided for this activity, otherwise the usual remuneration (§§ 612 para. 2 and 632 para. 2 BGB).
(4) Offsetting against a claim for remuneration by the tax adviser is only permitted with undisputed or legally established claims. Any claims of the client for repayment of remuneration paid shall lapse 18 months after receipt of the invoice by the client.
(5) The tax adviser may demand an advance payment for fees and expenses already incurred or likely to be incurred. If the advance requested is not paid, the tax adviser may, after giving prior notice, cease further work for the client until the advance is received. The tax adviser is obliged to inform the client in good time of his intention to cease work if the client may suffer disadvantages as a result of the cessation of work. The tax adviser shall be entitled to offset advance payments against all due claims arising from the contractual relationship, irrespective of the activity for which the advance payment was requested.
(6) The client shall be in default if he does not pay within 14 days of the invoice date.

10. Termination of the contract

(1) The contract shall end upon fulfilment of the agreed services, upon expiry of the agreed term or upon termination. The contract shall not end upon the death or legal incapacity of the client or, in the case of a company, upon its dissolution.
(2) The contract can – if and insofar as it constitutes a service contract within the meaning of §§ 611, § 675 BGB – be cancelled extraordinarily by either contracting party, unless it is an employment relationship with fixed remuneration, § 627 Para. 1 BGB; the cancellation must be made in text form. If this is to be deviated from in individual cases, an agreement between the tax consultant and the client is required.
(3) Upon termination of the contract, the client shall immediately return to the tax adviser or delete the data processing programmes used by the client to perform the contract, including any copies made and other programme documents.
(4) After termination of the contractual relationship, the documents must be collected from the tax consultant.
(5) If the engagement ends before it is fully executed, the tax adviser’s claim to remuneration shall be governed by the statutory provisions, in particular Section 12 (4) StBVV. If this is to be deviated from in individual cases, a separate agreement in text form is required.

11. Right of retention in relation to work results and documents

(1) The tax adviser may make and retain copies or photocopies of documents which he returns to the client or do so by means of electronic data processing.
(2) The tax adviser may refuse to hand over the documents until his fees and expenses have been paid (Section 66 (3) StBerG). A contractual right of retention shall be deemed to have been agreed with regard to the work results.

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

(1) German law shall apply exclusively to the order, its execution and any claims arising therefrom. If the client is a merchant, a legal entity under public law or a special fund under public law, the place of fulfilment and jurisdiction shall be the tax consultant’s professional establishment. This shall also apply in the event that the client moves his domicile or usual place of residence abroad after placing the order or if his domicile or usual place of residence is not known at the time the action is filed.
(2) The tax consultant is – not – prepared to participate in dispute resolution proceedings before a consumer arbitration board (Sections 36, 37 VSBG).⁵

13. Effectiveness in case of partial invalidity

Should individual provisions of these terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions.

For contracts concluded online with consumers, DWS form no. 1130 „Model cancellation policy, model declaration of consent and model cancellation form for consumer mandates concluded online“ must be observed. Please refer to the further information in DWS data sheet no. 1001. ︎
In the following, the term „tax advisor“ also includes tax agents. ︎
A legal basis under Art. 6 GDPR must also be relevant for the processing of personal data. The tax advisor must also fulfil the information obligations pursuant to Art. 13 or 14 GDPR by providing additional information. The notes and explanations in DWS information sheet no. 1007 on DWS forms no. 1005 „Data protection information for clients“ and no. 1006 „Data protection information on the processing of employee data“ must be observed. ︎
Pursuant to Section 55f (1) StBerG, every professional partnership, regardless of its legal form, is obliged to take out and maintain professional liability insurance. The amount of cover required for partnerships is regulated differently depending on whether the legal form limits the liability of natural persons (see section 55f (2) and (3) StBerG). According to section 67a para. 1 sentence 1 no. 2 StBerG, liability can be limited by general terms and conditions to four times the minimum sum insured if insurance cover exists in this respect. The contractual sum insured must correspond to the specifications with regard to the individual claim; otherwise point 6 must be cancelled. Please refer to the information in DWS data sheet no. 1001. GDPR may be relevant. The tax advisor must also fulfil the information obligations pursuant to Art. 13 or 14 GDPR by providing additional information. The notes and explanations in DWS information sheet no. 1007 on DWS forms no. 1005 „Data protection information for clients“ and no. 1006 „Data protection information on the processing of employee data“ must be observed. ︎
If the implementation of dispute resolution proceedings before the consumer arbitration board is desired, the word „not“ is to be deleted. In this case, reference must be made to the competent consumer arbitration board, stating its address and website. ︎