What is the black money bill
Cash payment speaks for tax evasion!
If the client pays the contractor an amount of 3,800 euros in cash before the work is carried out without receiving an invoice or receipt, this indicates that the contractor did not want to tax this part of the payment with the client's approval.
If the contractor intentionally violates his tax obligations and the client uses this violation for his own benefit, this leads to the nullity of the construction contract. This means that claims for defects on the part of the customer are also ruled out.
At the beginning of the work, the plaintiff had paid the defendant € 3800 in cash. According to him, he had collected the money from the bank on the same day. In the defendant's statement of 9 June 2015, the cash payment was not listed. The plaintiffs have not criticized this. With the lawsuit, you assert claims for the removal of defects.
The legal basis
§ 1 Paragraph 2 No. 2 SchwarzArbG contains the prohibition to conclude a contract for work and services if the taxable contracting party does not meet its tax obligations. In any case, the prohibition leads to the nullity of the contract if the entrepreneur intentionally violates it and the customer is aware of the entrepreneur's violation and deliberately uses it for his own benefit. The invalidity of the contract for work means that the purchaser's claims for defects are fundamentally ruled out (cf. BGH, judgment of 1.8.2013 - VII ZR 6/13).
The reasoning of the court
The court was convinced that the undisputed cash payment by the second plaintiff to the defendant for EUR 3,860 at the beginning of the work could only be explained in such a way that the defendant did not want to pay tax on this part of the payment with the plaintiff's approval.
The statement by the plaintiffs that this was, according to their understanding, an "advance payment" was viewed by the Senate as a protective claim. On the one hand, it is not plausible why a payment of this magnitude was not made by transfer. Even if cash payments in this amount are generally legally unproblematic, they nevertheless carry a risk, such as loss on the transport route, which is usually avoided in legal transactions with amounts of this magnitude. He does not have a plausible reason why the second plaintiff, who, according to his account, had taken the money "from the bank" (p. 38 of this document), did not use the bank visit to transfer the amount to the defendant communicated.
The plaintiffs' dishonesty with regard to the cash payment becomes clear at the latest with their non-response to the statement of June 9, 2015. Because in this statement the advance payment was not deducted. On the other hand, the invoice shows that the sales tax was only based on a net order amount of 6,027.14 euros. The plaintiffs have admitted, however, that the invoice amount was only plausible if the cash payment was taken into account (p. 20 d. A.). Since the receipt did not have a VAT component, the intention to reduce the VAT was obvious. A honest customer would have reprimanded the invoice if he had known about the cash payment. He would have asked for the advance payment to be made and for the VAT portion to be shown. The plaintiffs did not do this.
It is irrelevant whether the defendant has properly booked the cash payment in the meantime and complied with his tax liability.
The mutual violation of § 1 Paragraph 2 No. 2 SchwarzArbG leads to the nullity of the entire contract according to § 134 BGB.
OLG Schleswig, decision of 07.01.2019 - 7 U 103/18
With every payment, make sure you receive a VAT invoice and receipt.Back to overview
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