D: The financial authorities' right of inspection only applies within the scope of the statutory retention obligations

Category: Nachrichten, Urteile
By: O. Gönner - 2B Advice GmbH - the privacy benchmark

The Federal Fiscal Court (BFH) has ruled that the right of inspection of the investigating financial authority relates only to the data that was retained due to a statutory retention obligation. Further details adding to the facts of the case that were stored in the IT systems voluntarily need not be surrendered.

 

In the underlying legal dispute, the financial authority demanded during an external audit that, in addition to the cash income statement presented in paper form, the audited professional partnership surrender the underlying electronic data processing in suitable form for auditing. The partnership of auditors, tax consultants and attorneys refused to surrender this electronic documentation.

 

In the subsequent legal dispute, which the Federal Ministry of Finance also joined in, the Federal Fiscal Court (BFH) then decided on 6/24/2009 that from a legal point of view the obligation to present data from electronic data inventories pursuant to section 147 para. 6 AO (German Fiscal Code) affected basic rights considerably more strongly and was therefore not comparable to the obligation to present paper documents. In this context, the BFH referred to the census ruling that also highlights the particular intensity of interference that accessing electronically stored data represents. The court also takes into account the fact that pursuant to section 147 para. 1 AO, all documents and data that are of significance for the understanding and examination of the statutory record keeping must be surrendered as a matter of principle. However, the court explains further that private events and documents that are not subject to the duty to keep records, for instance, and data that was stored "voluntarily", exceeding the statutory obligation, are not subject to this requirement.

 

For companies this means that data records that were created for internal financial management are not necessarily subject to the obligation of surrender to the financial authority. Only documents subject to the retention obligation pursuant to section 147 para. 1 AO must be surrendered upon request.

 

However, this also means that section 147 AO cannot be a basis of authorization for the arbitrary surrender of personal data, but instead that only personal data processed in connection with tax-relevant documents may be surrendered.

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