Bogus invoice
The term Bill is a collective term for types of calculations that simulate a transaction or to conceal. In criminal tax law , a distinction must be made between “pure” bogus bills, cover bills, straw man bills, courtesy bills and falsified bills. This calculation is used to construct a life situation that did not exist in this way or in this form, mostly to explain a tax-reducing or subsidy-increasing issue to the tax authorities.
General
In right-hand traffic, the bogus invoice is created and circulated for a variety of reasons. The creation and use of such invoices can be considered due to tax regulations, but also for economic reasons.
To simulate a business transaction, one or more invoices are created that appear to show consultant fees. In this way, payments can be deducted from tax as business expenses that would not be tax-deductible, for example bribes or the remuneration of undeclared work .
In a very similar way, a bogus invoice can be used to disguise money flows abroad. Through the faked expenses, the funds leave the taxpayer's sphere of influence and reduce the taxable profit. The funds are usually in a tax haven transferred to the Treasury over the capital to conceal and the calculation of capital gains tax to be avoided.
Furthermore, one speaks of bogus invoices, where de facto dependent employees settle their salaries as external service providers or freelancers. Using bogus self-employed people can bring about enormous cost savings, as the social security contributions and wage taxes are not paid. This enables the entrepreneur to make profits even with otherwise ruinous orders and at the same time to create a good starting position in the market. Accordingly, the bogus invoice is particularly widespread in the labor-intensive service sector and in the construction and cleaning industry.
Types of bogus bill
A distinction is made between different types of bogus bills, such as cover, straw man or courtesy bills. In these cases, so-called dummy or letterbox companies are usually the issuers of the invoices .
Bogus invoice
Colloquially, the term bogus invoice means an invoice that is not matched by any service. The invoice was created solely in order to simulate operating expenses for the company receiving the invoice in order to reduce the profit and thus the tax burden on income or corporation tax.
Furthermore, it is possible for the entrepreneur who uses this invoice to deduct the sales tax openly shown in the invoice by the invoice issuing entrepreneur as input tax and thus to reduce his sales tax payable or even to receive a reimbursement from the tax office.
With the help of a bogus invoice, you can also withdraw funds from a company in order to pass them on to the owners, shareholders or managing directors ( hidden profit distribution ). For this purpose, an invoice and the associated payment are faked. The funds are then distributed to the appropriate beneficiaries. In addition, these funds reduce the operating profit.
Coverage calculation
A cover invoice is an invoice in which an actually incurred expenditure, e.g. for black wage payments or bribes, is included as a business expense. The expenses actually incurred are "covered" in the bookkeeping with the aid of this invoice. It is “necessary” for the entrepreneur in the financial accounting sense to post a cover invoice in his company accounts, as otherwise the profits made with the help of illegal workers would lead to a higher tax burden.
At the same time, a mismatch between sales and wage expenditure would arise in the company's bookkeeping, which could be an indication of illegal employment. In particular, the question would arise here whether the sales could be achieved with the officially employed employees. In the labor-intensive construction industry, the highest court rulings assume that for every euro in turnover, at least 66 percent of personnel expenses are accounted for, the so-called flat wage share . A blatant deviation from this wage share suggests deficiencies in the financial accounting.
Beispiel: unstrittiger Umsatz mit ordentlichen Arbeitnehmer 1.000.000 EUR Personalausgaben 66 % 666.666 EUR Sozialversicherung und Lohnsteuern geschätzt 20 % 200.000 EUR steuerlicher Gewinn 133.334 EUR
Abwandlung: unstrittiger mit Schwarzarbeitern erbrachter Umsatz 1.000.000 EUR steuerlicher Gewinn 1.000.000 EUR
In example b) you can see that the turnover also represents the profit. It is true that wages were incurred, but since they were paid in black, they did not reduce profits. If these black wages were correctly declared at the tax office, the entrepreneur would accuse himself of evading income tax (and of course of fraud to the detriment of social security).
Abwandlung Beispiel b: unstrittiger mit Schwarzarbeiter erbrachter Umsatz 1.000.000 EUR Abdeckrechnungen 866.666 EUR steuerlicher Gewinn 133.334 EUR
With the help of the cover invoices, the entrepreneur has now entered the black wage payments into the bookkeeping and reduced the profit in the books. In fact, a profit of € 333,334 resulted from the evasion of social security contributions and wage taxes.
The bribes mentioned at the beginning would be without a cover calculation according to Section 4 (5) sentence 1 no. 10 EStG is not tax-deductible anyway.
Straw man bill
A straw man invoice is an invoice that has been drawn up in the name of a third party and from which the company actually providing the service does not emerge. In this case, the accounting paper is created in the name of a straw man controlled and advanced by a third party in order to withhold the name of the actual entrepreneur and service provider from the tax office.
The so-called straw man invoice differs from the dummy invoice in such a way that it is not the business expenses and input taxes of the invoice-receiving entrepreneur that are faked, but rather the tax performance of the service provider is to be concealed.
This bypasses his tax liability . However, the background to such a straw man bill does not necessarily have to be the evasion of tax liability. In this way, income can be withheld from the competent authorities , for example in order to receive transfer payments or to prevent access to the funds generated by an enforceable title .
Courtesy invoice
The term courtesy invoice is an invoice that is created and passed on by the accounting entrepreneur as a convenience. This allows his business partner or friend to reduce his income tax and sales tax tax burden. The invoice is also not matched by an actual exchange of services. It is also possible that only part of that invoice is actually based on services and the higher invoice is only issued as a favor.
Fake invoice
Another type of bogus invoice is a forged invoice. For this purpose, the invoice sheet or letterhead or an offer from a company is used and falsified or imitated in order to fake business expenses and input taxes. Known here are, for example, the manipulation of the invoice amounts or the creation of new or further invoices that are created without the knowledge or will of the company issuing the invoice and used to reduce the profit and the sales tax payable load. At the same time, the forged invoice is peculiar to another criminal offense: the forgery of documents , since a fake document was produced with the intention of deceiving legal transactions.
Invoices for hidden profit distribution
A hidden profit distribution within the meaning of Section 8 (3) of the Corporate Income Tax Act (KStG) is a reduction in assets or a prevented increase in assets, which is caused by the corporate relationship, has an effect on the amount of profit and is not based on a profit distribution resolution corresponding to company law regulations. With the help of a bogus invoice, profits of a corporation can be distributed to its shareholders without a final withholding tax ( hidden profit distribution ). At the same time, the bogus invoice reduces the annual surplus of the corporation and thus the tax profit as well as the trade income.
Tax law
In tax law, the bill usually serves only one purpose: the tax burden should be reduced or any government subsidy should be increased.
| Tax type | Significance of the bill for this type of tax |
|---|---|
| Income tax | Increase in operating expenses and advertising costs and the accompanying reduction in tariff income tax |
| Business tax | Increase in business expenses in order to reduce trade income and thus trade tax |
| value added tax | Increase in input tax claims and thus a reduction in the VAT payable burden |
| Corporation tax | hidden profit distribution to the shareholder (s) of the corporation , which at the same time reduces the profit |
| Investment allowance | Proof of acquisition of assets to increase the subsidy |
value added tax
The sales tax is an all-phase net sales tax with input tax deduction , which is calculated by the entrepreneur himself and registered with the tax office. If an entrepreneur renders a service to another entrepreneur, the entrepreneur receiving the service can claim the sales tax openly shown in the invoice as input tax in accordance with Subtract § 15 of the Value Added Tax Act (UStG). It is precisely the self-calculation and registration of sales tax that makes it extremely susceptible to fraud, as a dummy invoice is used to fake an input tax deduction and this results in tax losses which, as inherent in the system , cannot initially be prevented by the state.
Beispiel: Ein Handwerker führt bei einem Bäckermeister Reparaturleistungen durch und stellt diesem 200 € zuzüglich 38 € offen ausgewiesener Umsatzsteuer in Rechnung. Dem Bäckermeister steht nun ein Vorsteuerabzug in Höhe von 38 € zu. Zudem macht der Bäckermeister im Rahmen seiner Umsatzsteuer-Voranmeldung beim Finanzamt weitere Vorsteuern in Höhe von 1900 € geltend. Die Vorsteuern resultieren aus einer Scheinrechnung, die der Unternehmer sich selbst erstellt hat. Ohne diese Scheinrechnung wäre eine umsatzsteuerliche Erstattung von 38 € entstanden (sog. Vorsteuerüberhang). Aufgrund der selbst erstellten Scheinrechnung macht er nun einen Steuervergütungsanspruch von 1.938 € gegenüber dem Finanzamt geltend.
Income tax law
In income tax law , d. H. In the case of income tax , corporation tax and trade tax , the dummy invoice serves the purpose of reducing the profit or trade income and thereby achieving lower taxation. According to Section 4 (4) of the Income Tax Act (EStG), operating expenses are deductible as operating expenses and thus lead to a reduction in profit. Operating expenses are faked and deducted by means of bogus invoices. This enables the trader to increase the operating expenses in a targeted manner and thus declare and tax a lower profit than the actually incurred profit at the tax office.
Beispiel: Ein Gewerbetreibender erklärt beim Finanzamt einen Gewinn in Höhe von 50.000 €. Bei der Berechnung des Gewinns hat er eine Scheinrechnung, die er sich selbst geschrieben hat, berücksichtigt und hieraus resultierende fingierte Betriebsausgaben in Höhe von 25.000 € abgezogen. Der tatsächlich entstandene Gewinn aus Gewerbebetrieb beträgt mithin 75.000 €. Durch die Scheinrechnung werden jedoch nur 50.000 € der Besteuerung unterworfen.
The tax authority tries to prevent these operating expenses, which result from bogus invoices, by specifying the recipient in the sense of § 160 AO .
Commercial law
Under commercial law, the principle applies that a merchant must not present himself richer than he actually is (so-called lowest value principle ). As part of the annual financial statements , the entrepreneur must show fixed and current assets in the balance sheet. The balance serves z. B. when applying for a bank loan as proof of the company's assets and earnings position and should represent the company's performance. She regularly plays a vital role in lending. With the help of a bogus invoice, it is possible for the merchant to fake the acquisition or existence of fixed or current assets . The best-known example of this was the company FlowTex , which faked the existence of around 3,000 horizontal drilling machines using 1,200 bogus invoices .
Beispiel: Fingierte Bohrsysteme wurden von FlowTex an Leasinggesellschaften und Banken verkauft. FlowTex selbst leaste die Maschinen im Wege einer Sale-Lease-Back-Transaktion wieder zurück (sog. Rückmietkauf), um den für die Leasinggesellschaften notwendigen Marktbedarf für eine Kreditfinanzierung bei den Banken sicherzustellen. Die erhaltenen Kredite der Leasinggesellschaften für den Kauf der nicht vorhandenen Bohrmaschinen war der Gewinn des Betrugs. Der Erwerb der Bohrsysteme wurde durch Scheinrechnungen nachgewiesen.
Combating the bogus bill
By introducing the building withholding tax ( §§ 48 ff. EStG) and shifting the tax liability to the recipient of the service ( § 13b UStG), the state tries to combat the bogus invoices in the building industry.
In the medium term, there are also discussions about changing the sales tax system to the reverse charge procedure, as it is already being applied through the application of § 13b UStG.
Legal consequences
Criminal consequences
Anyone who creates bogus invoices or has them created by third parties, which they then use within the framework of their company to deduct business expenses and input tax, is usually guilty of tax evasion and possibly of forging documents . The knowledgeable and willful use of bogus invoices in legal transactions constitutes according to Section 370 AO constitutes a tax offense.
If someone creates bogus invoices with which the recipient of the invoice is able to generate a business expense and input tax deduction, he is guilty of aiding and abetting tax evasion.
The unknowing use of bogus bills cannot be penalized.
Tax consequences
The use of bogus invoices, which are used to deduct business expenses and input tax, regularly leads to a refusal to deduct business expenses and input tax for the invoice recipient. Anyone who unknowingly used bogus invoices, for example because they were deceived about the actual payer, also loses their input tax entitlement, as the identity of the payer does not match that of the biller. According to constant tax court rulings, there is no protection of good faith in tax law. Anyone who creates a bogus invoice and circulates it owes the sales tax disclosed herein in accordance with § 14c Paragraph 2 UStG or § 14 Paragraph 3 UStG (old version). An invoice correction - as stipulated by the UStG - is not an option here.
