OGH on insured activities of an accountant

Sept 15, 2021 Benn-Ibler Rechtsanwälte

In this case, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of whether the intervention of an accountant as an agent for service of documents in income tax matters is covered by her professional liability insurance.

The plaintiff is an accountant and did not forward a request from the tax office to reimburse a client’s income tax. This resulted in an alleged loss to the client, which the client claimed from the plaintiff. The plaintiff is co-insured under a professional liability insurance contract concluded by the Federal Association of Austrian Accountants (Bundesverband der Österreichischen Bilanzbuchhalter) with the defendant insurance company.

In the present case, the plaintiff sought a declaratory judgment that the defendant insurance company was obligated to provide coverage in this case, since an authorization for delivery was an insured activity of the plaintiff. The defendant denied this.

The court of first instance rejected the claim and referred to Section 2 of the Austrian Accounting Act (Bilanzbuchhaltungsgesetz, BiBuG), which lists all activities of an accountant. In this case, the authorization of delivery was an act of representation vis-à-vis the tax office and thus not covered by the law.

However, the Court of Appeal upheld the plaintiff's appeal.

The OGH initially held that the client had granted the plaintiff a corresponding power of attorney for service, i.e. the authorization to receive official documents. However, this fact was not sufficient to constitute a professional activity according to Sec. 2 BiBuG. Rather, the activity must have an internal causal connection with the statutory powers of the accountant.

The legal wording of Sec. 2 BiBuG clearly states that an accountant is neither authorized to advise on an income tax return, nor to prepare one, according to the OGH. Thus, the plaintiff's activity would therefore not be related to a professional activity to which it is authorized. There was also no ancillary right under the Trade, Commerce and Industry Regulation Act (Gewerbeordnung, GewO).

The activity was thus not covered by the insurance.

OGH 7 Ob 104/21a (30.06.2021)