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This article only provides information on data reconciliation for asset control. More information can be found here:
Data comparison – background and conceptual clarification
Career kink and additional adversity can threaten if the state of receivers of BAföG benefits to come to grief, whose state funding was approved on the application form due to incorrect, incomplete or even overheated information on income and asset allocation.
As is often the case when public funds are withdrawn, the hand of the state, which has just given itself, can suddenly become a punitive hand in this case, and the culprits must at worst face criminal consequences, which can be very sensitive depending on the particular circumstances of the individual circumstances.
Whether from carelessness, forgetfulness, or whether the BAföG beneficiary has deliberately made false charges – cheating has long since lost its innocence in times of tight budgets of the public sector. All benefit recipients should therefore be most emphatically advised not to rely on the bonus of a trivial offense.
And just as with the old Romans the law was “Ignornatia legis non excusat”, even today the sinner will fall on deaf ears with the argument that he has not known anything, because ignorance still does not protect against punishment. This means that knowledge of general laws is required, and their ignorance of the law is not accepted as an excuse.
BAföG-recipient in the sights of the dragnet
In order to catch those who use unfair means to gain access to BAföG benefits, the state has for some years used a method of investigation that follows the principle of dragnet investigation, as well as the Code of Criminal Procedure and the provisions of the National Police Proceedings for the Prevention of Crime.
All instruments are based on the idea of a comparison of networked data sets, which searches for specific characteristics and peculiarities within comparison groups, detects abnormalities and deviations. This mechanism of targeted combing of given amounts of data also provides BAföG data reconciliation with its procedural basis.
BAföG data reconciliation and its legal bases
Cooperation of BAföG offices and Federal Office of Finance
The practical implementation of the BAföG data reconciliation is the responsibility of the BAföG offices, which rely on findings of the Federal Office of Finance for the purpose of comparison. The way to this is opened by the provision of § 41 para. 4 BAFöG, which gives the BAföG offices the power to check by recipients of BAföG benefits by means of automated data reconciliation whether there are indications that justify the initial suspicion of concealed assets.
The technical implementation of the comparison is carried out in three steps. First, the BAföG offices transmit to the Federal Office of Finance the personal data of the beneficiaries, including official and funding numbers. The Federal Office of Finance, for its part, now carries out the actual survey work on its own responsibility by comparing the data it receives with the data it manages itself. However, this requires a legal basis for authorization, because the allocation of powers under § 41 (4) BAföG acts exclusively for the BAföG offices and does not give the Federal Office any expertise. It arises for the Federal Office of Finance but from § 45d para. 1 EStG. The provision obliges the banks to submit a number of customer data to the Federal Central Tax Office.
Key point of the data comparison – examination of the allowances
The background for these reporting obligations is the prevention of abuse in the case of exemption orders in accordance with § 44a EStG. The data provided by the banks on the number of exemption orders and the amount of the allowances are used by the Federal Office of Finance as the basis for the reconciliation.
Based on a comparison of the data submitted by the BAföG offices with the bank data, it is now possible to determine whether and to what extent the recipients of the allowances have claimed allowances. Of course, this data reconciliation authority itself is also clearly regulated by law, because without a special legal basis, the rights of the BAföG beneficiaries subject to data protection must not be interfered with.
In doing so, the legal basis in question not only establishes the competence of the Federal Office for review, but also authorizes the authority at the same time to communicate the result of the reconciliation to the BAföG Amt. Both orders can be found in § 45d Abs. 2 EStG.
By the way, as the wording of the regulation reveals, the data comparison threatens not only BAföG recipients! Legislators have created a control tool for automated data reconciliation that should illuminate all areas of social benefits in order to track down abuse cases.
Data protection assessment
Fundamental right to informational self-determination
The BAföG-Datenabgleich stood for a good reason for years in the data protection criticism, which ignited the fact that it was missing for the mass matching of personal data to a special legal intervention basis.
The legislature has responded to the frequently articulated protest on the part of the data protection officer of the federal states and the student interest organizations after a long wait and by § 41 para 4 BAföG created the required legal basis. The regulation, which came into effect on December 8, 2004, likewise takes into account the massive concerns that have been expressed time and again in the jurisprudence and teaching of the previous data reconciliation practice of the BAföG offices. In fact, the BAföG authorities were not able to rely on any legally defined authority to collect, verify and evaluate the data for this variant of the dragnet search.
It was quite rightly criticized that the BAföG benefit recipients affected by this were in violation of their fundamental right to informational self-determination under Articles 1 and 2 of the Basic Law. This fundamental right, developed by the case law of the Federal Constitutional Court, guarantees the right and the right to decide on the disclosure and use of personal data. Intervention by the state into this constitutionally guaranteed area of protection must regularly be regulated by law, which must specify the nature and extent of the interference in detail and reduce it to a minimum.
Previous reconciliation practice problematic
Against the background of the law at that time the BAföG data reconciliation was therefore extremely questionable, because with the personal data of the BAföG receivers it concerns social data, as from the § 67 paragraph 1 social code X in connection with §§ 35,11,18 Social Code I. results. However, social data are subject to the social secrecy of § 35 paragraph 1 of the Social Code I. The second paragraph allows exceptions to this and in turn refers to the Sozilagesetzbuch X. The relevant § 67d paragraph 1 but expressly requires for the transmission of social data, a statutory provision. That is what it was lacking until the end of 2004.
New regulation constitutionally
With the entry into force of § 41 (4) of the Federal Training Assistance Act, constitutional and data protection concerns have now been resolved. The law formulates clear requirements and specifications for data reconciliation. In particular, it obliges the authorities involved to safeguard the data protection concerns of those affected. The Federal Office of Finance must immediately delete, destroy or return the social data transmitted to it after the reconciliation has been carried out, and its use by the BAföG office is strictly limited to the mere purpose of the verification. If the reconciliation does not justify any doubt that may lead to further investigations, the data should also be deleted.
Suspicious cases, inquiries and account collection
Care with interest income starting from 100 euro
If the allowances actually transferred to the BAföG Office are exceeded by a certain tolerance threshold, the BAföG office will investigate. In these cases, there will be reason to believe that performance-reducing assets may not have been disclosed at the time of application. If the Office first knows the amount of interest income generated, the inference of the capital yielding the income is a simple arithmetic operation. Finally, it turns out that the non-compulsory amount for the trainee in the amount of 5,200. Euro is exceeded, can threaten serious problems, because then may be the charge of abuse of power in the room.
How high the interest income must turn out to arouse the suspicion of the BAföG office can not be determined on a flat-rate basis. In general, one will be able to assume that interest income from 100-. Euro in the year the clerk suspiciously votes. A moderate interest rate of 2.00% assumes an interest income of 100-. Euro an investment amount of 5,000. Underlying the euro. This is an order of magnitude that at least causes further clarification.
Second control instrument – account collection
However, the BAföG office does not have to be satisfied with the data provided by the Federal Office of Finance and the findings gained from its review. If it has suspicions and wants to gather more information, he has with the account retrieval process, a second weapon in the fight against abuse of power available. Despite fierce criticism, the legislator has given the tax authorities the law on tax compliance of 23.12.2003, especially the tax authorities, but also certain other authorities the legal handle to retrieve inventory data on accounts and deposits at the credit institutions through the Federal Central Tax Office. The procedure is legally designed as an automated retrieval of account information and laid down in § 93 paragraphs 7 to 10 and § 93b of the Tax Code (AO). However, as the requesting authority is only informed of the account master data, it is not possible on this basis to determine any findings regarding account balances or possible account movements. After all, however, it is possible under the sign of tax evasion and abuse of social abilities to open up the authorities very wide control and review rooms and track the once suspected suspected targeted. The AO also authorizes the BAföG offices to collect accounts, if this is necessary to check the eligibility requirements for the receipt of benefits.
However, the Office is bound by the principle of proportionality. He asks the authority to decide whether the call-up of accounts is appropriate, necessary and proportionate in the strict sense of the word. This means nothing more than that the Office must have evidence that can justify a reasonable suspicion of irregularities. If the public agency has identified problematic interest income after reconciliation, this is usually reasonably plausible – and therefore legitimate – reason for requesting an account according to the legal requirements of §§ 93, 93b of the German Tax Code.
Restrictive handling of the access to the account and hearing
It should be noted, however, that the BAföG offices make use of this possibility only in a very restrained manner. The principle of proportionality already mentioned requires, in suspicious cases, first to ask the person concerned for an opinion on the facts. The BAföG beneficiary shall be given the opportunity to refute the suspicions put forward against him and to exercise his right to be heard. If the authority, without compelling reason, abstains from this obligation to attend the hearing, it violates the legislation created to protect the trainee, which not only creates a duty to co-operate, but at the same time gives a right to it. Only if the further behavior of the beneficiary gives rise to the presumption that there is no will or willingness to cooperate and provide information, the BAföG office will intensify its investigations and consider a call for accounts. The apprentice should therefore know that he can defuse the situation by himself with a high degree of willingness to cooperate and provide information – if he really has nothing to hide!
This is legally codified for recipients of public services practically extremely important hearing in § 24 paragraph 1 of the Social Code X..
The letter from the BAföG Office
If interest has been reported to the Office, the amount of which seems suspicious, it will first write to the trainee and ask them to comment. The BAföG beneficiary is regularly given up to disclose his financial circumstances at the time the application is submitted. Such a request for information is always linked to a deadline arrangement that must be observed. If the deadline expires, the Office assumes a lack of willingness to cooperate and will take additional measures without further ado. However, there is always the possibility of requesting the Office to extend the deadline if, for example, the procurement of the necessary documents should take some time. The more likely the BAföG beneficiaries to heed the abovementioned rules of conduct and face the office in a friendly and cooperative manner, the greater the prospects of granting a deadline extension request. As always in interpersonal relationships, courtesy and commitment to tone can pay off in this situation.
Reaction possibilities of the trainee
The hearing should always be seen as an opportunity and actively perceived! With all the discomfort that comes with the situation for the person concerned, there is no cause for concern for the person who has nothing to hide. It would be therefore fundamentally wrong and counterproductive to build an internal defensive attitude towards the BAföG office. The law obliges the authority to inform the facts comprehensively, but in particular to consider the circumstances favorable to the person concerned, as expressly prescribed by § 20 (2) of the Social Security Code. If someone is innocently advised by the BAföG investigators, which can never be completely ruled out in view of the mass data reconciliation, he has nothing to fear. The untenability of the allegations will prove to be repeated and careful review of the data.
If the trainee is unsure and can not remember exactly if he had more assets at the time the application was submitted than the law permits, only a detailed compilation of appropriate account documents and bank records can help. If these documents are no longer available, they can usually be requested from the bank without any problem. In general, it is advisable for BAföG recipients to create a special file folder from the outset in which all account documents and approval notices as well as correspondence with the office are filed.
In case of emergency – seek legal advice
If, in fact, assets have been concealed, the further procedure must be thoroughly rethought. It is important to keep calm and not break out into hectic actionism. The first tool of choice should now be going to the law office or a student counseling center to secure professional support. After all, a lot is at stake for the person concerned, and all further steps require conscientious planning and consideration.
However, this can not be done without the special expertise of a lawyer or a legally trained employee of student relief organizations. They will be able to clarify, for example, that the irregularity detected may be punished either as a misdemeanor or as a criminal offense, depending on the circumstances of the individual case. In particular, they will advise to show a high degree of good behavior and to explain themselves to the authorities comprehensively.
The insight and cooperation shown by the beneficiary in this situation will significantly influence the nature and scope of the state sanction. If he confesses to his false statements, this can be considered mitigating, but if he denies persistently and stubbornly, this is to his detriment. The law of misdemeanors, such as criminal law, offers a wide range of options for making punitive or punitive sentencing more effective through active remorse in the form of unconditional disclosure.
These opportunities should definitely be used. It is therefore often suggested to the person concerned, after receipt of the official letter with the request to disclose his financial circumstances, to make a self-report. Their content can be discussed with the lawyer in detail, with all the information that was incorrect or incomplete at the time of application being correct.
In any case, this form of mitigation should be brought forward to a temporary play and the vague hope of the igniting idea. If it is clear that there is a case of abuse of performance, the person concerned will not be able to avoid the consequences of tactical maneuvers. In such a situation, it can only be a question of demonstrating guilt and regret through active participation, and showing the sincerity that was missed in the application process. This behavior alone can – depending on the severity of the individual case – at least secure the prospect of indulgent punishment.
Still questions about the topic?
Simply describe your case in the BAföG-Forum Datenabgleich & Property Control. Maybe someone already had a similar question, which has already been clarified.
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