Pursuant to § 146a AO (Fiscal Code of Germany) new rules for "Guidelines for accounting and record-keeping using electronic record-keeping systems'" apply as of January 1, 2020. This refers to electronic cash register systems and cash registers, but also to corresponding modules of larger software packages.
Obligation to issue receipts
The obligation to issue receipts is still making headlines. That is because whoever sells goods to a large number of unknown customers and uses a PC cash register must issue a receipt (cash register receipt) to each customer immediately after the sale. This also applies to small businesses with numerous small sales (e.g. bakeries, ice cream parlours etc.); the existing hardship clause probably helps little in practice. Only open cash registers are not affected by the obligation to issue receipts. However, there is no obligation on the part of the customer to accept the receipt.
The receipt to be issued must contain the following information, which must be legible without the aid of machines:
- the full name and address of the entrepreneur providing the service,
- date of receipt issue and times of the start and end of operation,
- the quantity and type of goods delivered or the scope and nature of the service,
- transaction number,
- remuneration and the amount of tax payable on it in one sum and the applicable tax rate,
- serial number of the electronic recording system or the security module.
In the meantime, a lively debate has developed regarding the obligation to issue receipts. In addition to the sometimes enormous acquisition costs – in particular for integrated cash register-scale systems - trade associations point out the large amount of paper used, especially since customers do not have to take the receipt with them and in many cases they do not actually do so. The effectiveness of this measure to curb tax fraud is also being questioned. For example, sales could still be made without the cash register; on the other hand, sales recorded in the cash register system and therefore traceable do not require an additional receipt.
The receipt can also be issued electronically instead of on paper. The AO application decree already contained regulations for this purpose, which the tax authorities specified once again in a letter from the Federal Ministry of Finance dated May 28, 2020:
- The customer must agree to an electronic provision. The consent does not require a special form and can therefore also be implied.
- An electronic receipt is considered to be provided if the customer is given the opportunity to receive the electronic receipt. However, the mere visualisation of the receipt on a screen, e.g. a terminal or cash register display, is not sufficient. The customer must be given the opportunity to receive the receipt electronically.
- Electronic receipts must be issued in a standardised data format (e.g. JPG, PNG or PDF), i.e. receipt and visualisation on the customer's terminal must be possible using free standard software. There are no technical specifications as to how the receipt must be made available or transmitted for receipt. This can therefore be done directly via a screen display (e.g. a QR code) or via a download link, Near Field Communication (NFC), e-mail or directly into a customer account.
- Concurrent with the paper receipt, the electronic receipt must be created by the company even if the customer does not accept it.
Whether, when and in what form the tax authorities will also comment on further open questions regarding the obligation to issue receipts, e.g. exceptions or facilitations, cannot be estimated at present. In addition to a formal BMF letter, a non-binding FAQ is also being discussed.
Technical safety equipment of the cash register
The data recorded with electronic cash register systems must be protected against subsequent changes by a certified technical security device (TSE - technische Sicherheitseinrichtung). The cash register systems and TSE's must be registered with the tax office when they are purchased (not just at the time of commissioning) and deregistered when they are taken out of operation. For users of cash register systems, the use of TSE and the standardisation of data recording lead to considerably enhanced legal certainty and significantly less effort in tax audits.
The Federal Office for Security in Information Technology (BSI - Bundesamt für Sicherheit in der Informationstechnik) lists various manufacturers with certified TSE on its website. The TSE should be available as MicroSD or SD cards or USB sticks. Further systems, e.g. for cloud connection, are under development. Due to the substantial delays in formulating the legal and technical requirements, the first TSE were not available on the market until the end of 2019 and a comprehensive conversion of all existing cash-register systems by January 1, 2020 was not possible. Although the legislator and the tax authorities adhered to the statutory introduction date of 1.1.2020, they took this into account by means of a non-complaint provision: Pursuant to the BMF letter of 6.11.2019, no objections will be raised if the electronic recording systems concerned do not yet have a certified technical security device by 30.9.2020 at the latest. In this respect, the companies and cash register manufacturers were thus granted a postponement. After the deadline expired on 30.9.2020, this was extended again until 31.3.2021 by various decrees of the federal states under the condition that the TSE was demonstrably bindingly ordered by 30.9.2020. However, the ban on placing non-compliant systems on the market from 1.1.2020 onwards remains in force.
Existing cash register systems must also be retrofitted with a TSE, provided that this retrofitting is technically possible in principle ("construction-related"). Non-upgradeable devices may continue to be used until the end of 2022 under certain conditions.
During tax audits, the recorded data must be presented in a standardised format - the "Digital Interface of the Financial Administration for cash-register systems" (DSFinV-K). In addition, the tax authorities can check the correct use of the systems and the complete recording of sales at any time with unannounced cash checks.
Legal consequences in the event of infringements?
There are currently no specific sanctions for breach of the documentation and reporting requirements. After the application decree to § 146a AO these "duties to act" can be enforced however with "coercive measures". Since, in addition, both of these duties are central elements of the security concept, violations are likely to raise serious doubts about the formal correctness of the accounting, which in turn may have tax consequences, such as an assessment of income.
In the future, it cannot be ruled out, that the legislator will look beyond the borders. In Italy, for example, there is a take-away obligation for the receipt - and this already applies to every single espresso in a small bar! Within a radius of 100 m outside the business premises, the customer must carry the receipt with him and show it to the financial police when requested. If the customer does not have a receipt, fines for tax evasion are due.
Violations of the new technical requirements for electronic cash register systems and their proper use are administrative offences for which fines of up to EUR 25,000 can be imposed. These sanctions are irrespective of any tax consequences of incorrect cash (register) management (see above).
The ‘standstill deadlines’ until 31.3.2021 allow consulting practices and companies to breathe a sigh of relief for the time being. However, the further development of the certified TSE cash register systems should be meticulously observed against the background of the ongoing corona pandemic; any necessary conversions of the cash register systems must be continuously monitored and consistently promoted.
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