Allgemeine Auftragsbedingungen vom 15.07.2017 der Weltz & Partner Partnerschaftsgesellschaft mbB, Kassel
- These terms and conditions apply to treaties between auditors, tax consultants, certified public auditors, and or tax consultant companies (all summarised as “Wirtschaftsprüfer” in the following) and their contracting party in matters of audits, tax consultancy, and consulting in economic af-fairs, should there be no other written agreement or legal stipulation.
- Third parties can only derive claims between Wirtschaftsprüfer and contracting party if this is spe-cifically agreed in the respective contract or it results from binding legal stipulations. The third par-ties’ terms and conditions constitute the legal framework of possible claims.
2. Scope and order execution
- The agreed service, not specific economic success of the contracting party, is the contractual pro-vision. The order will be executed in accordance to the principles of professional practice (“Grundsätze ordnungsgemäßer Berufs¬ausübung”). Thus, the Wirtschaftsprüfer will not assume executive tasks of the board of directors. S/he is not liable for a beneficial effect or bringing about the services’ results in the contracting party’s enterprise. Further, s/he is permitted to call upon subject matter experts.
- Consideration of foreign legislation – other than in business audits – requires explicit written agreement.
- If the legal framework is changed after the professional statement has been made by the Wirtschaftsprüfer, s/he is not obliged to inform the contractual party about the change’s implica-tion or consequences resulting from it.
3. Cooperation obligation
- The contractual partner is obliged to cooperate. Documents required to fulfil the contractual agreement and relevant information must be submitted in due time. Further, the practice must be informed about all processes and circumstances that may touch upon the contractually agreed service in the affairs of the contracting party. This, too, applies for information arising within the course of the Wirtschaftsprüfer’s process time. The contractual partner is required to identify suitable interlocutors and respondents to the Wirtschaftsprüfer.
- Upon the Wirtschaftsprüfer’s request, the contracting party must declare in a prepared written declaration pertaining to the completeness and correctness of documents submitted, infor-mation stated, and explanations given, are formally correct.
- The contractual partner is obliged to actively participate and cooperate in the processes pushed in the practice. As far as the process is not an annual financial report or examination related to the practice’s competence, the Wirtschaftsprüfer may terminate the contract immediately and in ef-fective manner.
4. Ensuring independence
- The contractual partner is obliged to refrain from anything that may endanger the Wirtschaftsprüfer’s (or employees’) professional independence. This obligation applies to the du-ration of the contractual relationship. It is permitted neither to offer the Wirtschaftsprüfer em-ployment in an organ of the client’s enterprise, nor to make the Wirtschaftsprüfer depedent.
- If catering for a client or contractual party comes into conflict with another party catered for in the practice or this endangers professional independence of the Wirtschaftsprüfer, s/he is entitled to extraordinary termination lest his independence or that of his associates or network companies be endangered by these circumstances.
5. Reporting and verbal information
- As far as the Wirtschaftsprüfer needs to state results in writing, these alone are authoritative. Drafts are non-binding. As far as not stated otherwise, verbal statements and information are on-ly binding when confirmed in written form. Any statement outside of contractual agreement is non-binding.
6. Passing on Wirtschaftsprüfer's professional statements
- Passing on excerpts or complete work results – be it draft or final version, or informing third par-ties about taking action on behalf of a client, requires written permission of the Wirtschaftsprüfer. The only exemption is when legal stipulations force the Wirtschaftsprüfer to pass on information to authorities by administrative order or by law.
- The contracting party is not entitled and holds no permission to advertise with the Wirtschaftsprüfer taking action or any of his/her work results.
7. Correction of faults
- Concerning possible defects, the contracting party has the right to demand rectification of work-ing results by the Wirtschaftsprüfer. Possible shortcomings, defects resp. unjustified refusal, un-acceptability or rectification can be reason to decrease the Wirtschaftsprüfer’s remuneration or occasion to terminate the contract. Further, if the contracting party is not a consumer, that is a natural person in the legal sense, the contracting party may only withdraw from the contract if the service failed, is not executed at all, is unreasonable or rectification is of no interest to him/her. Should there be claim for damages beyond these clauses, § 12 n (9) applies.
- Correction of faults and remedy must be immediately demanded by the contracting party in writ-ten form. Claims as per n 1, that are not traceable to deliberate acts, lapse after one year from the statutory limitation period.
- Apparent inaccuracy as e.g. typing/ calculation/ formal errors, in professional statements and documents (e.g. report, expert opinion, and the like), can be corrected any time by the Wirtschaftsprüfer. This also applies for corrections concerning third parties. Further, inaccuracy that possibly question the work results of the Wirtschaftsprüfer can be subsequently withdrawn from third parties. The above-mentioned cases require to hear the Wirtschaftsprüfer before a correction is withdrawn.
8. Professional secrecy towards third parties, data protection and cooperation of third parties
- As per the legal stipulations of § 323 n. 1 HGB, § 43 WPO, § 203 StGB, the Wirtschaftsprüfer is obliged to professional secrecy concerning facts and circumstances, that are confided to the Wirtschaftsprüfer by the contracting party or arise within the work period. Unless the contracting party dispense the Wirtschaftsprüfer, the above clause mentioned is valid.
- The Wirtschaftsprüfer will comply with German Datenschutz regulations and European RGDP.
- The Wirtschaftsprüfer is obliged to verify the identity of the contracting party and must adhere to the money laundering combat law (“Geldwäschegesetz”). To verify and to document the identity of the contracting party, s/he is entitled to make a (digital) copy of the identity cards. Further, the Wirtschaftsprüfer is compelled to take all professional precaution to safeguard these copies. There is no passing on of identity card copies to third parties.
- Within the context of a certification audit of the practice, on condition that the auditor is instruct-ed, the Wirtschaftsprüfer is freed from his duties of secrecy.
- Commenced and pending agreement and complaint procedures with the Chambers (e.g. Steuer-beraterkammer, Wirtschaftsprüferkammer) free the Wirtschaftsprüfer from his secrecy obliga-tion. The Wirtschaftsprüfer is entitled to appoint a data protection officer. Further, s/he is entitled to call on employees as agents (Erfül¬lungsgehilfen), third party experts (i.e. tax advisors, public auditors, notaries), and data processing enterprises. The Wirtschaftsprüfer must, in written form, accordingly oblige these third party experts to adhere to professional secrecy and data protection. Further, the Wirtschaftsprüfer holds professional liability for the practices’ employees as per § 278 BGB. S/he is, by contrast, not liable for third parties and data processing enterprises, as these do not represent agents in the sense of legal liability. Third parties will conclude an individual contract accordingly. The Wirtschaftsprüfer will only be liable for the recommendation of a specific third party, not their services. The Wirtschaftsprüfer is subject to the information obligation as per Art. 13 and 14 RGDP (Personal Data treatment). The directory of processing, technical, and organi-sational measures TOM is enclosed to these Ts & Cs, but not translated.
9. Additional provisions for audit processes
- If the contracting party makes retrospective amendments or changes to the report or review of operation (audit opinion included), the annual report may be used no more.
- If the Wirtschaftsprüfer has not confirmed the report, the audit or examination may not be used. If the amended report is used nonetheless, the written consent of the Wirtschaftsprüfer is re-quired and the practice dictate accurate wording that is permitted.
- Withdrawal from the audit opinion will make the audit invalid. If the contracting party has already used the audit opinion, despite its withdrawal, the contracting party need to proclaim the with-drawal upon request.
- The contracting party is entitled to 5 copies of the report. More copies will be issued for invoice.
10. Supplementary provisions for assistance in matters of tax
- Concerning long-term and short-term clients, the Wirtschaftsprüfer is entitled to assume reported data is accurate and complete. This clause applies to financial accounting as well as for any other service. Identified inaccuracy in data must be indicated by the practice.
- The tax consultancy assignment does not include the actions necessary to ensure deadline fulfil-ments, unless the Wirtschaftsprüfer has specifically included this to the contract. In that case, the Wirtschaftsprüfer needs to receive all relevant documents, including tax assessment notices, in due time. This should happen in a sufficient time span to allow for the processing of data.
- In the absence of other written agreement, tax consultancy services comprise, among others, the following points
- Composition of annual tax declaration for Einkommensteuer (income tax), Körperschafts-teuer (corporate tax), Gewerbesteuer (business tax), as well as assets tax, geson-derter/einheitliche Feststellungserklärungen (uniform and separate determination of prof-its), that is based on annual reports, other statutory documents and papers required for taxation and the transferral of the E-Bilanz. The following services are to be remunerated as surcharge as per § 35 n 3 StBVV, and include, among others, assistance for stocktaking and inventory, reconciliation of accounts (current account, general ledger account), doubtful re-booking and transitory items, working through obscure receipts, composition, verification and assessment of partially completed work.
- Reviewing tax assessments (Steuerbescheid) of the tax types listed under 10.3.1.
- Negotiations with financial authorities in the context of tax declarations of tax types as listed under 10.3.1., and corresponding tax assessments.
- Assistance in corporate audits, assessment of results regarding taxes listed under 10.3.1.
- Assistance in opposition proceedings, lawsuits, complaints or grievance procedures for tax types listed under 10.3.1.
When the Wirtschaftsprüfer is charged with the creation of payroll accounting, the following liabilities remain fully with the contracting party. • Compulsory registration of employees (§ 28a SGB IV), Compulsory pay of dues (§28e SGV IV), • Compulsory determination of assessment bases (§ 14 jointly with §22 SGB IV, SvEV, MiLoG, Tarifrecht) • obligation to produce proof of paid dues (§ 28f SGB IV. jointly with BVV, § 2 NachwG, MiLoG, LStDV) • By social insurance law, compulsory determination of the status of managing partners, subcontractors, the next of kin are required. • Compulsory registration, determination of assessment bases, documentation obligation of artists by social insurance law (§24-29 KSVG) • Determination of affiliation to a professional pension insurance carrier, ascertainment of freedom from social security. Should the contracting party be unable to produce evidence for the employment being free from social security, the Wirtschaftsrpüfer’s enrolment of employees as bound to social security is mandatory. The Wirtschaftsprüfer will not be liable for counselling on Sozialversicherungspflicht (mandatory social security in Germany). Assistance and enrolment of employees to Berufsgenossenschaften (i.e. German Statutory Accident Insurance), preparing payments, filling in transfer forms for bank transfer, net/gross projections of costs, calculation of union wages, holiday allowance, royalties, cost centre accountancy, creation of annual certificates for the Bundesagentur für Arbeit (Federal Employment Agency), Certificates for Federal statutory old age pension, reporting for the severely disabled compensation levy, requests for grants of salary allowances, reporting for professional associations, post-survey of Lohnsteuer (payroll tax) for previous fiscal years, completion of surveys from Federal Employment agency, and counselling of employers in matters of payroll tax fall under § 34 n (5) StBVV and must be remunerated by time effort.
Disclosure of annual reports in Handelsregister (company register):
The contracting party is responsible to disclose the annual report timely be the 31st Dec of the coming business year. The liability to submit all documents unrequested at least four weeks prior to the end of the deadline lies with the contracting party. It is responsible to disclose the annual report timely by the 31st December of the coming year. The contracting party is liable to submit unrequested all documents required. Delayed or incomplete sub-mission of files by the contracting party will add another four weeks of process time. Penal-ties of the German Federal Office of Justice and other penalties are not covered by the ser-vices of the Wirtschaftsprüfer.
- Creation and submission of E-Bilanz at the responsible financial authority: Composition of financial accounting, if the contracting party is not booking financial account-ing itself, including filing the VAT return (Umsatzsteuervoranmeldung). Unsorted, illegible, or incomplete receipts, accounting documents, and cash registers (Kas-senaufzeichnungen) that are submitted for booking, as well as those documents where statements require correctness verification, will be service that is remunerated by time ef-fort as per § 33 n. 7 StBVV.
- Submission of required documents for the VAT return registration are a responsibility of the client, not the practice. Timely and complete fling of the documents required for accounting must be submitted three working days prior to the period expiry of the 10th of the month following the end of the pre-registration period (Voranmeldungszeitraum). Under continua-tion extension (Dauerfristverlängerung), the period will be extended to two months. In both cases, the responsibility remains with the client. Delayed or incomplete submission of files may cause penalties by the financial authority (Finanzamt). These penalties are not covered by the Wirtschaftsprüfer’s services.
- Where there is a fixed salary agreement for the Wirtschaftsprüfer’s services of tax consultancy, and no agreement is made for further services, services listed under 10. n. 3 are to be remunerat-ed separately from the fixe salary agreement.
- When the Wirtschaftsprüfer is a Steuerberater (StB) and the StBVV will be applicable, remunera-tion other than applicable statutory maximum compensation can be agreed upon in written form. The Wirtschaftsprüfer is entitled to calculate remuneration per time effort, where applicable. Cf. Pricing chart on this website.
- Processing specific individual questions concerning Einkommen¬steuer (income tax), Körperschaft-steuer (corporate tax), Gewerbe¬steuer (business tax), Einheitsbewertung und Vermögensteuer and all matters of VAT, payroll tax, other tax and duties is completed upon specific order. This also applies to processing of once incurring matters of taxation in the domain of criminal cases concern-ing tax, as e.g. inheritance tax (Erbschaftsteuer), capital transfer tax (Kapitalverkehrsteuer), prop-erty transfer tax (Grunderwerbsteuer), cooperation and representation in lawsuits at financial courts (Finanzgericht), administrative courts (Verwaltungsgericht), and criminal cases that require counselling, and expert activities in the domain of conversion, capital increase and decrease, modernisation, entry and exit of shareholders, business sale, liquidation, business valuation, valu-ation of immaterial assets and the like, and assistance in duty of disclosure and duty of documen-tation. Specific issues of tax are represented by further inquiries over the phone or by e-mail. These questions are to be remunerated separately as per § 10.3.7.
- Processing the annual VAT return for business clients, does include neither the verification of ac-counting prerequisites and applicable methods, nor the verification of application of all possible VAT-related tax advantages. We cannot vouch for the thoroughness of data for the assertion of input tax deduction (Vorsteuerabzug).
11. Electronic communication
- Communication of Wirtschaftsprüfer and of client or contracting party may well be on the digital way, i.e. per e-mail. As far as the contracting party states to not be contacted by mail or requires specific safety requirements, i.e. encryption of e-mail or specific signature procedures, the Wirtschaftsprüfer will confirm in writing. The contracting party has to financially contribute to the establishment and maintenance of signature process and encryption (e.g. by purchasing suitable hard- and software).
- Charge receivable, remuneration receivable and outlay refund are expenditure demanded by the office. VAT is calculated separately. Advance payment and reimbursement of out-of-pocket ex-penses may be demanded and significantly influence the provision of service. Multiple contracting authorities are liable as joint and several debtor.
- If the contracting authority is an enterprise, there is no count up of claims.
- If there be no other written agreement, assistance in criminal cases is remunerated as per StBVV. There is reference to remuneration as per § 10 ns (1, 4, 5, 6). The Wirtschaftsprüfer is entitled to remunerate services by time effort, when executed by professional staff like Steuerberater and Wirtschaftsprüfer (e.g. Tax consultant (StB), Certified public auditor (WP) or Certified valuation analyst (CVA)).
- Processing a client’s order strictly entails cost absorption of digital infrastructure (DATEV software, storage, and shipping fees) by the client.
- Services that strictly are neither covered by compensation agreement nor by provisions of the law, are considered to be approved tacitly and thus remunerated in line with § 612 Abs. 2 BGB und § 632 Abs. 2 BGB.
- The Wirtschaftsprüfer is entitled to give notice immediately effective, as far as no audit obligation in line with § 316ff HGB is existent. The Wirtschaftsprüfer may give notice immediately effective, should the client not pursue the duty to remunerate, or not pursue the obligations of dunning no-tices.
- Order assignment are agreed under the stipulations of § 286 Abs. 3 BGB. As per § 286 Abs. 3 BGB. Accordingly, default of payment occurs if the payment is note made after 30 days of invoice re-ceipt plus 30 days.
- The Wirtschaftsprüfer is entitled to demand advance payment for his services.
- Count-up of claims is only possible when these are uncontroversial or ascertained legally binding.
- The Wirtschaftsprüfer is entitled to make use of the SEPA-Lastschriftverfahren (SEPA direct debit withdrawal), once announced, that is, to retract receivables for executed service. Use of SEPA-Firmenlastschriftverfahren is only permitted by explicit agreement with the client.
13. Dispute settlement
- The Wirtschaftsprüfer is not poised to participate in dispute settlement procedures in a consumer arbitration board.
14. Applicable rule of law
- Merely German jurisprudence is the valid legal code for the order, its execution, and resulting claims.
15. Exemptions from obligation to secrecy to assert debt claims
- The client or contracting party specifically agrees to permit the Wirtschaftsprüfer to transfer open demand claims to debt collection agencies (Inkassounternehmen).
- The client or contracting party has been informed that a debt collection agency may collect money on behalf of the Wirtschaftsprüfer. In this context, personal information, in particular tax-related information may be transferred to the collecting agency, as far as this information are relevant for to the fulfilment of the debt claim.
- The collection agency’s data concerning a claim debtor underlie the same secrecy obligation as does the Wirtschaftsprüfer.
- Approval of these clauses likewise apply to future orders. The contracting party has been in-formed that approval to these clauses can be withdrawn anytime in written form.
16. Efficacy in partial nullity/ Severability
- Should individual provisions of these Ts & Cs be or become null and void, the validity of other pro-visions remains unaffected. The void provision is replaced by a provision that comes closest to the void provision.