Income tax liability

As part of the wage tax deduction procedure, employers are liable for insufficiently withheld and paid wage tax as well as for the church taxes to be calculated in connection with the wage tax deduction, the solidarity surcharge and the miner's premium. According to § 44 AO, the tax debtor and the liable parties are jointly and severally debtors, each of which owes the entire service.
In the event of a claim arising from liability, the employer has the option of collecting wage tax from the employee. In Section 42 d of the Income Tax Act, two types of liability are listed: Liability for insufficiently withheld and insufficiently paid wage tax. The first requirement presupposes that the employer has not withheld the wage tax for the employee in accordance with the regulations. Liability for insufficiently paid wage tax, on the other hand, includes the entire amount that was insufficiently paid for the permanent establishment in the wage tax registration period or in the calendar year.

The employer can exempt himself from liability if he notifies the tax office immediately after becoming aware of his mistake and corrects the mistake with the next wage payment. It is irrelevant for the employer's liability whether he is at fault; an objective breach of duty is sufficient. According to the Financial jurisprudence However, it has to be assessed within the framework of a discretionary decision whether claims are made against the employee or the employer.

The employer's liability does not depend on whether enforcement against the employee has been unsuccessful. In practice, however, the employer is consulted first, which is for the Financial management is faster and easier. The employer's right of recourse to the employee is regulated outside of the taxation procedure. If a real debt on the part of the employee has been paid, recourse is assessed according to labor law.

According to § 670 BGB and the case law of the Federal Labor Court, the employer can demand full compensation for subsequently levied tax amounts, unless he has not done everything he can to clarify the matter in advance. In most cases, recourse is virtually impossible.

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