FG Nürnberg - 3 K 596/22
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| FG Nürnberg - 3 K 596/22 | |
|---|---|
 | |
| Court: | FG Nürnberg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1) GDPR Article 6(2) GDPR Article 6(3) GDPR § 30 AO § 90 AO |
| Decided: | 01.02.2023 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 3 K 596/22 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Bayern.Recht (in German) |
| Initial Contributor: | lacrosse |
The Nuremberg Financial Court held that a tax office was entitled to process personal data of tenants in the context of a tax investigation concerning their landlord. The landlord had to transmit the rental agreement without blackening the tenants' names.
English Summary
Facts
The case concerns the legality of a request for documents.
The controller was the owner of several apartments. The Bavarian tax authority required the controller to provide several documents, including their rental contracts. The controller submitted the rental contracts but redacted the names of the tenants. They explained that it was not possible to disclose personal data without consent. The names were also not necessary for an examination of their actual income.
The tax office dismissed the objection and requested the landlord to submit the names of the tenants. The tax office stated that a tax payer is obliged pursuant to § 90 Section 1 of the Fiscal Code (Abgabenordnung - AO) to cooperate in determining the facts. This obligation to cooperate also includes the obligation to submit documents. The tax office needed the names of the tenants and the respective rental agreements to check the tax-relevant circumstances. As a matter of fact, tenants' name were required in order to assign payment flows to the respective tenancy individually. Therefore, the document request was appropriate and reasonable. The controller was entitled (and obliged) to name the tenants to fulfill their tax obligations in accordance with Article 6(1)(c) GDPR.
The controller brought an action before the finance court. They took the view that the personal data of the tenants contained in the apartment rental contracts were protected by the GDPR. The landlord was therefore not allowed to disclose this data to third parties without the tenants' consent.
Holding
The Nuremberg Financial Court dismissed the action. The tax office was allowed to request the documents at issue.
The German legislator used the open clause of Article 6(1)(c) and (e) GDPR, in combination with Article 6(2) and Article 6(3) GDPR, to create a legal basis for the processing of personal data by tax authorities pursuant to § 29(b) AO. The processing of personal data by a tax authority is permitted if it is necessary to fulfill the task incumbent on it or to exercise an official authority that has been assigned to it.
The decision of the tax office to require the rental contracts with the names of the tenants was justified by the need to check that taxes were effectively paid. In taking its decision, the tax office determined the facts relevant to the decision flawlessly and exhaustively, complied with the statutory limits of discretion and made use of the discretion in a manner corresponding to the purpose of the authorization.
It is in the overriding general interest that tax evasion are avoided as completely as possible. In addition, it should also be considered that data disclosed by the controller are subject to tax secrecy pursuant to § 30 AO. In the balancing of interests between the the data subject rights and the public interest the latter prevailed. The document request was therefore proportionate and reasonable.
Comment
As in several other decisions by DPAs and courts, legal bases under Article 6(1)(c) and 6(1)(e) GDPR are to some extent mixed. This practice should be discouraged, as different legal bases entail different legal consequences. In particular, a data subject can object to a processing based on public interest pursuant to Article 21 GDPR, whereas a processing necessary for compliance with a legal obligation is not subject to such a remedy.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
FG Nuremberg, judgment of 02/01/2023 – 3 K 596/22
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Title:
Request for submission of rental contracts and other documents for the income tax return
chains of standards:
DSGVO Art. 4 No. 2, Art. 5 Article 6 paragraph 1c, Article 9 paragraph 2
FGO Section 91a Paragraph 1 Clause 2, Section 100 Paragraph 1 Clause 1, Section 102, Section 115 Paragraph 2 No. 1 and 2, Section 135 Paragraph 1
GG Art. 20 Para. 3, Art. 28 Para. 1
EStG § 21 paragraph 2
Motto:
The taxation principles of § 85 AO - to set and levy taxes evenly in accordance with the law - has constitutional significance with regard to the general principle of equality and the rule of law (judgment of the Federal Constitutional Court - BVerfG - of 27.06.1991 2 BvR 1493/89, BStBl. II 1991, BeckRS 1991, 01328; BFH decision of January 31, 2013 GrS 1/10, BStBl. II 2013, 317, BeckRS 2013, 94659). (Rn. 43) (editorial guiding principle)
Keyword:
Personal Data
Appeals authority:
BFH Munich from -- - IX R 6/23
Further information:
Revision approved
Findings:
BeckRS 2023, 2798
DStR 2023, 829
LSK 2023, 2798
tenor
1. The lawsuit is dismissed.
2. The plaintiff has to bear the costs of the proceedings.
3. The revision is allowed.
facts
1
The legality of a request for documents is disputed.
2
With the submission of the plaintiff's income tax returns for the years 2018 and 2019, the attorney-in-fact for the income from renting and leasing the properties B-Stadt, B-Straße, and A-Stadt, A-Straße, submitted, among other things, lists of the collected rental income, depreciation, the administration and maintenance expenses as well as other expenses for the respective house.
3
As part of the processing of the declarations, the tax office requested the legal representative in a letter dated June 8th, 2021 and a reminder letter dated July 13th, 2021 to provide copies of the current rental contracts, ancillary cost statements and evidence for the income from renting and leasing the property on A-Straße in A-Stadt to submit claims for maintenance expenses.
4
In a letter dated July 22, 2021, the attorney-in-fact presented a breakdown of the gross and net rental income with the blacked-out names of the tenants and the operating costs for the various apartments on A Street and documents on the maintenance expenses, but not the requested rental agreements and utility bills. He informed that the disclosure of these documents with regard to the principles of the General Data Protection Regulation - GDPR - is not possible without the prior consent of the tenants. In addition, there is no entitlement to request documents, since the rental contracts are unsuitable for checking the actual income.
5
In a letter dated September 2nd, 2021 and a reminder letter dated September 28th, 2021, the tax office then asked the legal representative to submit the rental agreements and, if applicable, the letters about rent changes for the purpose of the Checking the information given in the tax return.
6
The objection raised against the request to submit the documents was rejected by the tax office as unfounded in an objection decision dated April 28, 2022.
The reasoning was essentially as follows:
7
According to Section 90 (1) AO, a taxpayer is obliged to cooperate in determining the facts. In particular, he fulfills his obligation to cooperate by fully and truthfully disclosing the facts relevant to taxation and by stating the evidence known to him. The tax office can determine at its due discretion what evidence it deems necessary within the meaning of Section 92ff AO. The obligation to cooperate also includes the obligation to submit documents (§§ 97 AO, 92 sentence 2 no. 3 AO). Participation may be requested insofar as it is necessary, proportionate, feasible and reasonable to determine the tax-relevant facts.
8th
The tax office needs the names of the tenants and the respective rental contracts to check the tax-relevant circumstances. The rental agreements show - if necessary in conjunction with other documents - the amount of the agreed rent, rent increases, deviations from payments actually made, the composition of the rent, the apportionability of ancillary costs, the scope of the tenant's right of use with any reservations by the landlord or simply the actual execution of the (private) rental.
9
The request for documents is therefore a suitable means of clarifying the tax-relevant circumstances. Furthermore, the document request is also necessary. There is no other equally effective remedy. In particular, the taxpayer's private lists do not have a comparable value as evidence, since they were only drawn up unilaterally. In contrast to rental agreements, which are naturally concluded by at least one other party, they are objectively more difficult to verify. The names of the tenants are also required in order to be able to assign payment flows to the respective tenancy individually.
10
The document requirement is also appropriate and reasonable. It does not mean any serious disadvantages for the plaintiff that are out of proportion to the legitimate purpose of the tax assessment to be made. The requirement is a proportionate measure to clarify the tax-relevant circumstances when determining income from renting and leasing. The consultation of the leases and the letters about rent changes is therefore suitable, necessary, appropriate and actually achievable.
11
In addition, the principles of the GDPR do not preclude the fulfillment of the obligation to cooperate, since the plaintiff is entitled to collect and process the personal data contained in the contracts for the purpose of fulfilling these tax obligations, Art. 6 Para. 1c GDPR. The right to "processing" also includes the right to pass it on to the tax authorities.
12
The attorney-in-fact brought an action and essentially stated the following in justification:
13
The personal data of the tenants contained in the apartment rental contracts are protected by the GDPR. The landlord is therefore not entitled to disclose this data to third parties without an express legal basis or the tenant's consent. The tax office did not provide the plaintiff with the consent of the tenants to release the data. It should also be clear to the tax office that the plaintiff's right to processing the data - in this case storage of the rental agreement - does not automatically override the provisions of the GDPR and includes the right to pass on the tenant data to the tax authorities.
14
The plaintiff is therefore not entitled and not obliged to disclose the data.
15
In addition, the office already has all the data required to carry out the taxation. The requested data is neither necessary nor suitable for the assessment to be carried out. The plaintiffs have submitted extensive statements, such as the account statements of the rental accounts with blacked out tenant data, for the rental apartments. The Office did not even state what information the plaintiff provided in her income tax return (allegedly) would give rise to doubts. The request to the tax office to name an alternative way of proving the plaintiff's income remained unanswered.
16
The request for submission goes beyond the measures required for the implementation of the taxation. The measure is therefore to be regarded as an unlawful external audit. The request of the tax office is not proportionate and also not reasonable. It is unlawful because it encourages the commission of a crime, violating the GDPR. On the one hand, the claimant's constitutionally guaranteed right to informational self-determination pursuant to Article 2(1) in conjunction with Article 1(1) of the Basic Law was violated by the tax office's request. In addition, the plaintiff was instructed, with reference and threats of claims under sovereign law, to violate the informational right of its tenants to self-determination by presenting the rental contracts.
17
According to the plaintiff, the blanket, unrestricted requirement for the leases is based on internal administrative instructions in order to essentially set up and maintain a database on leases with sovereign resources – without a legal basis and thus arbitrary, illegal and even infringing on the law. For this purpose, the rental contracts would be systematically queried from the taxpayers. This is inadmissible. The initiation of criminal measures appears indicated.
18
In the oral hearing, the attorney-in-fact also argued that neither Section 29b AO nor Article 4 No. 2 of the GDPR gives the tax office the authority to request the data. A request for submission is also limited to the fact that the requested documents are important for the taxpayer's taxation. However, the rental contracts are irrelevant for the plaintiff's taxation.
19
The attorney-in-fact requested
the annulment of the notifications of June 8th, 2021, September 2nd, 2021 and September 28th, 2021 as well as the objection decision of April 28th, 2022 on the submission of rental agreements for the property A-Straße in A-Stadt.
In the event that the action is dismissed, he applies for the approval of the revision because of the fundamental importance of the legal matter and because of a possible deviation from the fundamental decisions of the BFH.
He further requests
to declare the involvement of an authorized representative necessary for the preliminary proceedings.
20
The tax office requests
reject the complaint.
21
As justification, it refers to the explanations in the objection decision and additionally argues that measures to check the correctness of the information declared by a taxpayer are in accordance with the case law of the highest court. If a tax is not levied at source, its determination depends rather on the declaration of the tax debtor, so increased demands are placed on the tax honesty of the taxpayer. The legislature must therefore ensure tax honesty through sufficient control options that ensure equal tax burdens. In the assessment process, the declaration principle needs to be supplemented by the verification principle. In the case of the dispute, there were indications that the plaintiff had concluded several new leases during the disputed years.
22
The tax office is also not planning to set up a database for tenancies with the requested documents. It is only about the taxation of the plaintiff.
23
In the permanent documents file submitted by the tax office, to which reference is made for the details, there are some documents for apartments in house A-Straße in A-Stadt. Rental contracts are for the apartment on the left from February 1st, 2017 (tenant: C), for the apartment on the first floor on the right from July 1st, 2016 (tenant: D) and parts of the rental contracts concluded by the previous owner for the apartment on the right from March 31st, 2003 ( Tenant: E; pages 1 and 8), for the apartment on the 1st floor on the left from 09/01/1986 (tenant: F; only page 1), for the apartment on the 2nd floor on the left from 03/31/2011 (tenant: G; pages 1 and 8), for the apartment on the 2nd floor on the right from 02/10/1994 (tenant: H; pages 1 and 8), for the apartment on the 3rd floor on the left from 07/14/1998 (tenant: I; pages 1 and 8) and apartment 3. First floor on the right from August 31, 1998 (tenant: J; pages 1 and 8). The file also contains declarations of consent to the rent increase for the apartment on the 1st floor on the left dated May 16, 2016 (tenant: F), for the apartment on the right on the ground floor from May 4th, 2016 (tenant: E), for the apartment on the second floor on the left from July 27th. 2016 (tenant: K), for the 2nd floor apartment on the right from 07/03/2016 (tenant: H), for the 3rd floor apartment on the left from 05/15/2016 (tenant: I) and for the 3rd floor apartment on the right from May 2016 (tenant: J) included. In the declarations of consent, the old and the new cold rent are stated and it is stated that in addition to the cold rent the agreed advance payment for ancillary costs is unchanged. However, the amount is not specified.
24
With decisions of January 23, 2023 and January 26, 2023, to which reference is made for the details, the court allowed the parties involved to take part in the oral hearing on February 1, 2022 via video link.
25
The hearing was broadcast simultaneously in image and sound in the attorney's office, an office of the tax office and in the meeting room (§ 91a Para. 1 Sentence 2 FGO).
26
For further submissions, reference is made to the briefs of the parties involved with annexes, the transcript and the income tax files submitted by the tax office for the years 2018 and 2019, a file of permanent documents and the plaintiff's appeal file.
Reasons for decision
27
The lawsuit did not have any success.
28
The notices of June 8th, 2021, September 2nd, 2021 and September 28th, 2021 as well as the objection decision of April 28th, 2022 are not illegal and do not violate the plaintiff's rights (§ 100 Para. 1 Sentence 1 FGO).
29
Taking into account the principles of the General Data Protection Regulation (GDPR), the tax office was also allowed to ask the taxpayer to submit the rental agreements and the letters about rental changes for the purpose of checking the information provided in the tax return.
30
1. A referral to the ECJ under Article 267 (2) of the Treaty on the Functioning of the European Union - TFEU is not necessary. In the event of a dispute, there are no decisive questions regarding the interpretation of Union law. All dispute-relevant questions are assessed exclusively according to domestic tax procedural law. In addition, the Senate allowed the appeal to the Federal Fiscal Court and thus made it possible to challenge it with domestic legal remedies.
31
2. According to § 93 Section 1 Sentence 1 AO, those involved and other persons have to provide the tax authority with the information required to determine a fact that is significant for taxation. According to Section 97 (1) sentence 1 AO, those involved and other persons must submit books, records, business papers and other documents to the tax authority for inspection and examination. The request for submission must state whether the documents are required for the taxation of the person requested to submit them or for the taxation of other persons (§ 97 Para. 1 Sentence 2 AO).
32
3. Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons when processing personal data, on the free movement of data and on the repeal of Directive 95/46/EC ((General Data Protection Regulation); OJ L 119 of 04.05.2016, pp. 1-88) is applicable to the tax office's request for submission. In the field of tax administration, the GDPR is also applicable to the administration of direct taxes. As an EU regulation, the GDPR applies in accordance with Art. 288 TFEU directly in every member state of the Union, without the need for further implementation by national law. In addition, the federal legislature has ordered the at least substantive validity of the GDPR for the entire data processing activity of the tax authorities by reference in § 2a AO.
33
a) The personal and material scope of the GDPR are open. The plaintiff is a natural person identified by tax number or tax identification number or otherwise identifiable and as such an "affected person" within the meaning of Article 4 No. 1 GDPR and is therefore personally entitled to claim. In the event of a dispute, the material scope of the GDPR is open to the extent that the collection and recording of personal data is to be assessed. In principle, all information contained in a tax file is also personal data. According to Art. 4 No. 7 GDPR, the defendant tax office is “responsible” within the meaning of GDPR (Haferkamp in Finanzrundschau 2022, 821).
34
b) Due to the opening clauses regulated in the GDPR in Article 6 Paragraph 2 in conjunction with Paragraphs 1 and 3 and Article 9 Paragraph 2 GDPR, the legislator has set the basic regulations in Section 29b AO for the tax authorities in the data protection area of the processing of personal data Art. 5, Art. 6 and Art. 9 GDPR regulated and modified (Schleswig-Holstein Finance Court, judgment of August 23, 2021 5 K 42/21, EFG 2022, 1; Drüen in: Tipke/Kruse, AO/FGO, § 29b AO number 1; Wackerbeck in Hübschmann/Hepp/Spitaler, AO/FGO, § 29b AO number 2; Krömker in: Lippross/Seibel, basic commentary on tax law, § 29b AO marginal number 1). Section 29b (1) AO, which has been applicable since May 25th, 2018 to all cases still open at this point in time, regulates the special grounds for admissibility and legality for data processing. The processing of personal data by a tax authority is permissible if it is necessary to fulfill the task incumbent on it or to exercise official authority that has been assigned to it (§ 29b Para. 1 AO).
35
c) "Processing" within the meaning of this regulation is, according to Art. 4 No. 2 of the GDPR, any process carried out with or without the help of automated processes or any such series of processes in connection with personal data such as collecting, recording, organizing, sorting, the storage, adaptation or modification, reading out, querying, use, disclosure by transmission, distribution or any other form of provision, comparison or linking, restriction, deletion or destruction. Art. 4 No. 2 GDPR contains a binding definition of the term processing within the framework of Section 29b AO (Wackerbeck in Hübschmann/Hepp/Spitaler, AO/FGO, Section 29b AO Item 18; Baum in: AO – eKommentar, version from April 23, 2018, § 29b AO marginal number 11).
36
d) The concept of necessity is to be understood and interpreted in accordance with EU law. Data processing is not permitted if it is useful or conducive to the fulfillment of the task ("suitability"). Rather, the prerequisite is that there is no sensible or reasonable alternative (no equally suitable, milder means) to the intended way of data processing in order to achieve the goal pursued in each case. The specific task fulfillment of the tax authority in individual cases must not be possible without the processing of the personal data (Wackerbeck in: Hübschmann/Hepp/Spitaler: AO/FGO, § 29b AO Tz. 25). The processing of special categories of personal data by a tax authority is permitted in accordance with § 29b paragraph 2 sentence 1 AO, insofar as the processing is necessary for reasons of substantial public interest and insofar as the interests of the person responsible for data processing outweigh the interests of the data subject. According to the unambiguous wording of the law, both characteristics must be present cumulatively. In order to achieve this considerable public interest as a goal, the data processing must be suitable (Wackerbeck in: Hübschmann/Hepp/Spitaler: AO/FGO, § 29b AO Tz. 39). Furthermore, the data processing must be necessary, i.e. there must be no milder and equally suitable means of achieving the significant public interest.
37
e) Art. 5 GDPR standardizes basic conditions, all of which must be observed when processing personal data. First of all, the principle of the legality of data processing must be observed (Art. 5 Para. 1 Letter a Var. 1 GDPR). According to this, a processing operation or series of processing must always be able to rely on a legal basis or a reason for permission, which results either from the GDPR itself or from national law – exhausting the regulatory leeway granted. Any processing of personal data must also be carried out in good faith, i.e. "fairly" and comply with the principle of transparency (Art. 5 Para. 1 Letter a Var. 2 and 3 GDPR). The central principle of purpose limitation of data processing (in the broader sense) requires Art. 5 Para. 1 Letter b. half 1 GDPR the determination of clear and legitimate processing purposes as well as the purpose limitation i.e.S. In order to ensure the factual correctness and, if necessary, the current status of personal data (Art. 5 Para. 1 Letter d GDPR), the responsible body has to take all reasonable steps to do so that incorrect personal data is deleted or corrected (Drüen in: Tipke/Kruse, AO/FGO, § 29b AO Tz. 5). According to the principle of data minimization (Art. 5 Para. 1 Letter c GDPR), personal data must be appropriate and relevant to the respective, defined data processing purpose and limited to what is necessary for the purposes of processing. As an expression of the requirement to minimize data and result from the principle of earmarking, Art. 5 Para. 1 Letter e GDPR requires the storage of personal data in terms of time to the minimum necessary (for the processing purpose) (Drüen in: Tipke/Kruse, AO/FGO , § 29b AO item 5).
38
f) The admissibility of data processing follows the responsibility for the task (principle of connection). The tasks and powers under public law incumbent on the tax authorities result from the AO, in particular the principle of statutory and equal taxation (cf. § 85 AO), and the tax laws (Krömker in: Lippross/Seibel, basic commentary on tax law, § 29b AO, marginal number 4; Drüen in: Tipke/Kruse, AO/FGO, § 29b AO paragraph 9; Baum in: AO - eKommentar, version of 25.05.2018, § 29b AO marginal number 6). Section 29 b (1) AO provides a sufficient legal basis for the processing of personal data that the person has provided themselves as part of their obligation to cooperate or that has been provided by third parties (employers, debtors of capital gains, etc.). § 29b AO is not an authorization for new forms of data collection, which the AO has not yet provided for in the form of cooperation and information obligations (Drüen in: Tipke/Kruse, AO/FGO, § 29b AO item 1; Baum in: AO - eComment, version of February 2nd, 2023, § 29b AO marginal number 10.1). According to Art. 6 Para. 1c DSGVO, the processing is lawful if the processing is necessary to fulfill a legal obligation to which the person responsible is subject.
39
g) The request for submission is an administrative act within the meaning of § 118 AO. The administrative act must specify (§ 119 Para. 1 AO) who should submit which document(s) for which taxation procedure. Like the other provisions on evidence, Section 97 AO is also a discretionary provision. Accordingly, the request for submission must be necessary (also suitable) to determine the facts, it must be proportionate, achievable and reasonable (Seer in: Tipke/Kruse, AO/FGO, § 97 submission of documents, marginal number 9; Schuster in: Hübschmann/ Hepp/Spitaler: AO/FGO, Section 97 AO Item 32). The discretionary considerations are to be explained in the justification for the request for submission (Seer in: Tipke/Kruse, AO/FGO, § 97 Submission of documents, para. 14).
40
4. Taking these principles into account, the decision of the tax office to ask the taxpayer to submit the rental agreements and any letters about rent changes for the purpose of checking the information provided in the tax return is not objectionable in the event of a dispute.
41
a) If the financial authority is authorized to make decisions at its discretion, it must exercise its discretion in accordance with the purpose of the authorization and comply with the statutory limits of discretion (§ 5 AO). According to § 102 sentence 1 FGO, the judicial review of the decision and the objection decision made is limited to whether the tax office has correctly and exhaustively determined the facts relevant to the decision in its decision, whether the statutory limits of discretion have been exceeded or whether the discretion in one of the purposes of the authorization has been exceeded not made use of it in an appropriate manner. The object of examination for the judicial control of the administrative decision for errors of discretion can therefore only be those actual circumstances that were known or should have been known to the tax authority at the time of the last administrative decision (cf. BFH judgment of February 12, 2009 VI R 40/07, BStBl II 2009, 478; Drüen in: Tipke/Kruse, AO/FGO, § 102 FGO margin no. 7).
42
b) The tax office has asked the taxpayer to submit the rental contracts and any letters about rental changes in order to fulfill the tasks incumbent on them and in the exercise of official authority that has been assigned to them. Sections 90, 93, 97 AO are the legal basis. The request for the documents was justified in the objection decision of April 28, 2022 with the fact that the names of the tenants and the respective rental contracts are required to check the tax-relevant circumstances. The rental agreements show - if necessary in conjunction with other documents - the amount of the agreed rent, rent increases, deviations from payments actually made, the composition of the rent, the apportionability of ancillary costs, the scope of the tenant's right of use with any reservations by the landlord or simply the actual execution of the (private) rental. The office also stated that the measure was necessary because there were no sensible or reasonable alternatives (no equally suitable, milder means) to the intended review of whether the cold rent, the ancillary cost advance payments and the billing were recorded correctly, in order to achieve the goal pursued in each case to reach.
43
c) The decision of the tax office does not reveal any errors of discretion. In making its decision, the tax office determined the facts relevant to the decision flawlessly and exhaustively, complied with the statutory limits of discretion and made use of the discretion in a manner corresponding to the purpose of the authorization. Obtaining the information serves to fulfill the duties of the tax authorities resulting from § 85 AO. According to § 85 AO, the tax authorities have to set and levy taxes evenly in accordance with the law. In particular, they must ensure that taxes are not reduced or wrongly levied, or that tax refunds and tax rebates are not wrongly granted or denied (§ 85 sentence 2 AO). These taxation principles not only serve the fiscal interest in securing tax revenue. Rather, they have constitutional significance with regard to the general principle of equality (Art. 3 (1) GG) and the rule of law (Art. 20 (3), Art. 28 (1) sentence 1 GG) (judgment of the Federal Constitutional Court – BVerfG – dated June 27, 1991 2 BvR 1493/89, Federal Tax Gazette II 1991, 654, under C.I.1., II.2.c; BFH decision of January 31, 2013 GrS 1/10, Federal Tax Gazette II 2013, 317, margin no. 61; BFH -Judgment of 01/18/2012 II R 49/10, Federal Tax Gazette II 2012, 168, margin no. 47). The equal tax burden, which is also guaranteed by Art. 3 Para. 1 GG, is a public good of outstanding importance (BVerfG decision of 06/13/2007 1 BvR 1550/03 u.a., BStBl. II 2007, 896, under C.I.3. dbb). Given the fundamental and far-reaching importance of taxation for the state, the national economy, individual businesses and for every citizen, it is an essential requirement of justice that the state tries to enforce the legally provided taxation evenly against everyone and thereby unequal treatment and distortions of competition to the detriment of individuals prevented as far as possible (Federal Fiscal Court ruling of May 16, 2013 II R 15/12, BStBl. II 2014, 225, para. 34 with further references).
44
d) The legislature is therefore constitutionally obliged, in order to avoid the unconstitutionality of the substantive tax law, to embed it in a normative environment that guarantees the actual equal burden of the taxpayers, in particular by supplementing the declaration principle with the verification principle (BFH judgment of 16.05. 2013 II R 15/12, Federal Tax Gazette II 2014, 225, para. 35). This may also require investigative measures or the collection of records, contracts, documents and the like in order to avoid a structural deficit in enforcement. The overriding general interest in the disclosure of tax-relevant information therefore justifies interference with the fundamental right to data protection guaranteed by Article 3(1) in conjunction with Article 1(1) and Article 14 of the Basic Law. The information and notification obligations enshrined in tax law and the authorization to issue control notifications (§§ 93 Para. 1, 194 Para. 3, 208 Para. 1 AO) meet the requirements of fundamental rights guaranteed data protection. They are sufficiently defined by law and comply with the principle of proportionality (Federal Fiscal Court ruling of May 16, 2013 II R 15/12, BStBl. II 2014, 225, para. 35).
45
e) In the case at hand, according to the files available to the court, the plaintiff concluded tenancies for the property on A-Straße in A-Stadt with eight tenants in 2018 and 2019. However, the office only has two current leases. The parts of other leases in the permanent file were concluded by the previous owner, do not contain any information on the agreed basic rent, the ancillary costs, the apportionability of ancillary costs and are partly 20 years old. Declarations of consent to rent increase requests contained in the files do not list the ancillary cost advance payments claimed. Only the old and the new cold rent are named and it is stated that in addition to the cold rent the agreed advance payment for ancillary costs is unchanged. However, the amount is not specified. To check which tenancies exist in 2018 and 2019, whether there is a reduced lease (§ 21 Para. 2 EStG), which rent and which ancillary costs advance payment is charged, which ancillary costs are apportionable, whether the tenancy exists with third parties or relatives and other aspects, the submission of all rental contracts and declarations of consent to rent increase requests valid in these years is required. This is the only way for the tax office to fulfill its task of checking the income from renting and leasing the property. The requirement is therefore necessary. A milder and equally suitable means of achieving the considerable public interest is not apparent.
46
f) When examining the proportionality and reasonableness of the provision of information, the high priority of the interest of the general public in preventing tax reductions as completely as possible must be taken into account (BFH judgment of May 16, 2013 II R 15/12, BStBl. II 2014, 225, para .38). In addition, it should also be considered that the data that the plaintiff is supposed to transmit to the office on the basis of the request for information is subject to tax secrecy (§ 30 AO) and therefore the tenants affected by the query are not usually burdened by the disclosure of the data to the tax office . A weighing of interests between the interests of the taxpayer (restrictive processing of his sensitive data) and the interests of the tax authorities (data processing for the purpose of equal taxation) shows that the interests in proper and equal taxation prevail.
47
g) Nothing else emerges from the point of view put forward by the legal representative that documents only have to be submitted to the extent that they are to be kept and kept according to tax law regulations. The BFH has decided that the powers from Section 147 (6) AO to inspect the stored data and to use the data processing system to check these documents are only available to the tax authority in relation to documents that the taxpayer has in accordance with Section 147 (1) AO must be kept (BFH ruling of 06/24/2009 VIII R 80/06, BStBl. II 2010, 452). The data requirement according to Section 147 (6) AO is accessory to the taxpayer’s obligation to record and retain data (Federal Fiscal Court ruling of February 12, 2020 X R 8/18, BFH/NV 2020, 1045). However, these decisions were made on the lack of data access by the tax authorities in the case at hand and on the books and documents to be kept for people who have to keep books and records (§§ 140 et seq. AO).
48
h) The statement by the plaintiff's representative that the tax office is planning to set up and maintain a database on tenancies is not supported by anything. The representative of the tax office pointed out in the oral hearing that the tax office did not want to build up a corresponding database with the requested documents and that it was only about the taxation of the plaintiff. The court has no reason to doubt this. Furthermore, it should be pointed out that with regard to the processing of personal data, the data subject has legal protection against tax authorities or against their processors due to a violation of data protection provisions within the scope of Regulation (EU) 2016/679 in accordance with Section 32i (2) AO (Krömker in: Lippross/Seibel, basic commentary on tax law, § 29b AO, para. 7).
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i) The tax office's request for submission is also not to be regarded as an unlawful external audit. The authority neither issued an inspection order (section 196 AO), nor scheduled an inspection on the plaintiff's premises, nor based the request for submission on the provisions on the obligation to cooperate in external audits (section 200 AO). The request for documents by the back office is part of the investment activity.
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The revision is permitted in accordance with § 115 Para. 2 No. 1 and 2 FGO, since the matter is of fundamental importance and a supreme court decision on a request for submission from the tax office, taking into account the principles of the GDPR, has not yet been made as far as can be seen.
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The decision on costs is based on Section 135 (1) FGO.
