FG Niedersachsen - 12 K 213/19

FG Niedersachsen - 12 K 213/19
Court:	Niedersächsisches Finanzgericht (Germany)
Jurisdic tion:||Germany
Relevant Law:	Article 2(2)(a) GDPR Article 15(1) GDPR
Decided:	28. 1. 2020
Published:	n/a
Parties:	anonymous
National Case Number:	12 K 213/19
European Case Law Identifier:	ECLI:DE:FGNI:2020:0128.12K213.19.00
Language:	German
Original Source:	Niedersächsisches Landesjustizportal (in German)

The Financial Court of Lower Saxony in Germany denied the access of the plaintiffs to personal data processed by a tax authority. The Court ruled that the provisions of the GDPR in the area of tax law are only applicable to harmonized taxes according to Article 2 (2)(a) GDPR, such as sales tax, but not in the area of income taxation of natural persons.

English Summary

Facts

The plaintiffs claimed the right to inspect files in accordance with Article 15 (1) GDPR. They argued that the scope of application of the GDPR is not excluded according to Article 2 (2) because the GDPR should be applicable to all types of tax in favor of those affected.

Dispute

The Court had to assess whether the GDPR is applicable to a access request concerning personal data processed by the tax authority.

Holding

According to Article 2 (2)(a) GDPR the regulation does not apply to the processing of personal data as part of an activity that does not fall within the scope of Union law. Therefore, the court ruled that the provisions of the GDPR in the area of tax law are only applicable to harmonized taxes, such as VAT, but not in the area of income taxation of natural persons. In this respect, there is no corresponding harmonization in the area of the European Union. The court explained further that the national legislature has not extended the material scope of application of the standard of Article 2 GDPR to the area of non-harmonized taxes. Accordingly, the Court denied the requested access according to Article 15 GDPR.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the German original for more details.

Procedure according to § 32i AO data protection law procedure according to EU GDPR 
In the area of tax law, the provisions of the General Data Protection Regulation (GDPR) are only applicable to harmonized taxes, such as those on sales tax, but not in the area of income taxation of natural persons. 

It is not permitted to extend the factual scope of application of the GDPR by a letter from the tax authorities. 
Lower Saxony Finance Court 12th Senate, judgment of 28.01.2020, 12 K 213/19, ECLI: DE: FGNI: 2020: 0128.12K213.19.00 
Art 15 TEU 2016/679, Art 2 TEU 2016/679 
Fact 
1 
The existence of a claim to access of the plaintiffs according to the provisions of the General Data Protection Regulation (GDPR) is disputed. 
2nd 
The plaintiffs requested by letter dated ... 2019, with reference to the provision of Art. 15 Para. 1 2nd Half Sentence, Para. 2 GDPR, access to their income tax files for the assessment period ... at the defendant tax office .... They had previously brought an action against the tax office (FA) against the refusal to grant access to the files in accordance with the provisions of the Tax Code (AO) in their income tax files for the assessment period ... after a preliminary procedure that had so far been unsuccessful. This lawsuit, which is still pending a decision, is being filed with the Lower Saxony Finance Court under Az. 7 K ... 
3rd 
By decision of ... 2019, the defendant FA rejected the plaintiffs' application based on the provisions of the GDPR. It pointed out that it was not permitted to provide information on the data requested by the plaintiffs, since the rights and freedoms of others should not be affected, since these rights and freedoms were protected by tax secrecy. Furthermore, a claim to information on the exceptional condition of section 32c (1) no. 3a of the AO fails, since with regard to income tax ... 
4th 
The plaintiffs appeal against this with their application lodged on ... of 2019. It is true that with regard to the assessment period ... under which ... an income tax decision was issued which has become final. In this notice, ... was deviated. This income tax assessment was (effectively) announced to the former tax advisors of the plaintiffs. In this regard, there was probably reciprocal correspondence and some telephone calls between the former tax advisors and the defendant FA, which the plaintiffs remained unknown. The intention is to claim damages from the tax consultants originally working for the plaintiffs. The prerequisite for this was that errors had been made in the context of the tax assessment, in particular the "reciprocal correspondence" referred to by the former tax advisors, in particular against the background that questions from the complaining FA apparently had not been fully answered. In order to get an overview of the reciprocal correspondence, in particular the problem discussed with the former tax advisors, an application for inspection of the file was made for the first time with a legal letter dated ... and now again with a letter dated ... in 2019. 
5 
The plaintiffs have a right to inspect files in accordance with Art. 15 Para. 1 Half Clause 2, Para. 2 GDPR. Because from May 25, 2018, all taxpayers generally have a binding right to inspect files under the GDPR at the tax authorities, so it is not decisive that the right to inspect files has not been expressly regulated in the GDPR. Such a claim arises from the aforementioned regulation, according to which there is a right to information about all processed personal data. The factual scope of application of the GDPR is not excluded according to Art. 2 Para. 2. In principle, the regulation only applies to the processing of personal data within the scope of Union law, which is doubtful in the case of non-harmonized taxes such as income or corporate tax. However, in the opinion of the highest financial authorities of the federal and state governments, the GDPR should be applicable to all types of tax contrary to the law in favor of those affected. This can be found in the corresponding BMF letter of January 12, 2018, BStBl I 2018, 185 (margin no.3 and 22). In addition, the plaintiffs have a right to access information from the self-commitment of the administration. This is also not a judgment of the respective tax authorities. 
6 
The applicants request that 
7 
canceling the rejection notice of ... 2019 to oblige the defendant FA ... to give them access to the income tax files of the assessment period ... 
8th 
The defendant tax office ... requests that 
9 
reject the complaint. 
10th 
From the GDPR that has been in effect since May 25, 2018, there is no claim for the plaintiffs to inspect files. In this respect, the exception in accordance with Art. 23 Para. 1 Letter i GDPR in conjunction with Section 32c Paragraph 1 No. 1 AO in conjunction with Section 32b Paragraph 1 No. 2 AO in conjunction with Section 30 AO applies, since data from third parties, in the present case the data from tax advice ... to be protected according to § 30 AO. A claim to a discretion-free decision on the granting of access to files already fails because the administrative procedure was completed with the final tax assessment. In this respect, there is a lack of interest in knowledge of the documents required for this procedure. There was no objection to the fact that the FA had given priority to the fact that the files had been kept secret during the administrative procedure over the interest of the taxpayer in obtaining information for a recourse process. If the plaintiffs assert claims for recourse against the former tax advisor, he becomes a third party within the meaning of section 30 of the AO. Accordingly, the data of tax advice are subject to tax secrecy according to § 30 AO. 
11 
In addition, the exception in Section 32c (1) no.3a of the AO also applies in the event of a dispute, since the personal data in the form of the documents at issue are saved (or kept) only because they are legally required due to the existence of the income tax assessment notice Storage regulations should not be deleted (or destroyed). 
12th 
The applicants have stated that the defendant FA cannot rely on the exceptional circumstances cited by it. The question already arises as to which "data" from tax advice ... should be protected in the event of a dispute. Because this law firm is the former tax advisor to the plaintiffs, who in this respect only transmitted the data of the plaintiffs but not their own tax data. The reference to tax secrecy in Section 30 of the AO is also misguided because the confidentiality provisions are precisely not a regulation on access to official information, but a regulation on limiting it. This provision says nothing about a claim by the taxpayer against the tax authority to be informed of the data stored about him. 
13 
The plaintiffs' personal data would of course not be saved solely on the basis of statutory retention requirements. Because the income tax notice ... was partially provisional according to Section 165 Paragraph 1 Sentence 2 AO, so that in the present case not only retention requirements are complied with. In this context, it is also irrelevant whether the income tax assessment ... of ... had already become permanent when the applicants made an application for access to the file. In this respect, there is, among other things, a possibility of correction according to § 153 AO. However, this also requires access to the income tax file. 
Reasons for decision 
14 
The complaint was unsuccessful and had to be dismissed as unfounded. 
15 
I. The plaintiffs' claim, filed on the basis of the provisions of the General Data Protection Regulation (GDPR), to have access to files in their income tax files kept by the defendant tax office ... for the assessment period ... does not exist. The factual scope of application of the provisions of the GDPR does not extend to the area of income tax. 
16 
1. According to Art. 2 Para. 2 Letter a GDPR, this regulation does not apply to the processing of personal data 
17th 
as part of an activity that does not fall within the scope of Union law. 
18th 
2. a) Accordingly, the provisions of the GDPR in the area of tax law are only applicable to harmonized taxes, such as that of sales tax, but not in the area of income taxation of natural persons. In this respect, there is no corresponding harmonization in the area of the European Union (cf. Tipke / Kruse-Drüen, commentary on the AO and FGO, paragraph 6 on § 2 a AO mw N.). 
19th 
b) The national legislature has also not extended the material scope of application of the standard of Article 2 GDPR to the area of non-harmonized taxes. 
20th 
In particular, no such extension of the factual scope of application can be inferred from the provision of § 2a AO, since this provision does not deal with questions of the factual application of the General Data Protection Regulation to the individual tax types, such as that of income taxation. 
21 
The opposite view, which Krumm advocated in an analogous application of Section 2a (5) of the AO, according to which the factual scope of application of the GDPR also extends to non-harmonized taxes (see basic questions of tax data processing law, Operation 2017, 2182 (2186 f )), the court is unable to follow. Because even if the legislator should have striven with the regulation in Section 2a (5) AO to strive for a uniform data processing right for all tax procedural law, it can be inferred from the regulation there - also not by analogy - that the legislator has the factual scope of application in Wanted to expand on non-harmonized taxes. In view of the lack of meaningful wording in § 2a AO, the court considers this to be purely speculative. The inclusion of 
22 

"... 1. deceased natural persons or 
2. corporations, legal or non-legal associations or assets. " 
23 
in any case, it does not consider it sufficient to expand the factual scope of the GDPR as a whole. 
24th 
c) Insofar as the plaintiffs refer to the BMF letter of January 12, 2018, BStBl I 2018, 185 (paragraphs 3 and 22; replaced by BMF letter of January 13, 2020 IV) with regard to a factual scope of application of the GDPR that also extends to income taxation A 3-S 0130/19/10017: 004, 2019/1129406, evidence under JURIS), the court is also unable to follow them. 
25th 
Because it does not consider it permissible if the tax authorities and not the legislators called upon and authorized for this purpose extend the factual scope of application of the GDPR to non-harmonized taxes by means of a (mere) BMF letter. The financial administration may not deviate from legal provisions, not even in favor of a taxpayer. In this respect, the plaintiffs cannot successfully rely on the self-commitment of the administration (see BFH judgment of 3 July 2019 VI R 49/16, BFH / NV 2019, 1404 (1407) mw N.). 
26 
II. The cost decision follows from Section 135 (1) FGO. 
27 
The revision is permitted because of the fundamental importance of the case (Section 115 (2) No. 1 FGO).