Self-disclosure

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This article or paragraph describes the situation in Germany , Austria and Switzerland . Help me to describe the situation in other countries.

In criminal tax law, a voluntary disclosure is a personal reason for annulment. Anyone who effectively submits a self-disclosure can not be punished in accordance with Section 371 of the Tax Code (AO), even though he has completed tax evasion ( Section 370 AO). The most important reason for the voluntary disclosure exempt from punishment is the development of sources of tax revenue that the state was not aware of until the voluntary disclosure was made. The voluntary disclosure is politically and socially controversial.

The term “voluntary disclosure” is not used in general criminal law. Anyone who reports themselves for other than tax offenses can obtain mitigation for active repentance . In Germany there are also similar regulations for subsidy fraud, money laundering and the evasion of social security contributions for self-disclosure.

Germany

Political debate

There have been discussions about voluntary disclosure for years. One reason for this was z. For example, a house search at Klaus Zumwinkel's house in February 2008 , which received a lot of media attention . German authorities bought several tax CDs and each triggered hundreds of voluntary reports from taxpayers.

On November 23, 2012, the Federal Council (in which the countries governed by the SPD , the Greens and the Left hold a majority) refused to approve the tax agreement between Germany and Switzerland . The federal cabinet called the mediation committee . The Federal Government rejected the mediation result on January 17, 2013, the Federal Council on February 1, 2013; so the law had failed (BT-Drs.17 / 12282, BR-PlenProt No. 906).

In spring 2013 the discussion became more intense.

  • OffshoreLeaks began at the beginning of April . Since then, there has been increasing discussion - also at EU level - of how tax havens could be dried up.
  • The banking crisis in Cyprus (more here ) and the impending bankruptcy of the Republic of Cyprus make (s) aware of how much money taxpayers have moved abroad.
  • Also, the banking secrecy is being criticized. In April 2013 it became known that Austria and Luxembourg wanted to loosen their banking secrecy.
  • On April 20, 2013, Focus publicly announced online that there were public prosecution investigations against Uli Hoeneß (President of FC Bayern Munich) on suspicion of tax evasion after Hoeneß had submitted a voluntary report in January. For more details see the article 'Uli Hoeneß' .
  • In February 2014, Alice Schwarzer and André Schmitz became known as two further cases of tax evasion by prominent Germans.
  • According to Handelsblatt, around 20,000 voluntary disclosures were received by German tax offices in the first ten months of 2013. In 2012 as a whole, there were only around 8,000 voluntary disclosures.

Discussion on the abolition of self-disclosure that exempts from punishment

The Hoeneß case received a lot of media attention and prompted numerous top politicians to express their views on the subject of “voluntary disclosure”. The SPD announced that, in the event of an election victory, the voluntary disclosure would be reduced to petty offenses and completely abolished within a maximum of two years.

On April 26, 2013, the Bundestag voted to abolish voluntary disclosure. The party Die Linke had requested this vote; all other parliamentary groups voted against this motion.

The Bavarian Prime Minister Horst Seehofer said on April 27th: “We should not abolish the self-disclosure, we should limit it to certain, smaller cases.” “When it comes to mafia-like structures, when a lot of money and criminal energy are involved gentleness would be completely inappropriate. The state must act against such criminals with all the severity of the law. "

After Alice Schwarzer and André Schmitz became aware of the tax evasion , in February 2014 SPD politicians such as Sigmar Gabriel , Hubertus Heil and Joachim Poß repeated the demand to abolish the voluntary self-disclosure, which exempted the penalty. In the case of the Greens , Katrin Göring-Eckardt demanded that the voluntary disclosure, which exempts from punishment, only be allowed for petty offenses. From the ranks of the CDU / CSU, on the other hand, the voluntary self-disclosure is adhered to. CDU Finance Minister Wolfgang Schäuble declared on February 6, 2014 that he saw no convincing reasons for abolishing the instrument.

2011 amendment

In March 2011, the federal government submitted a draft law to improve the fight against money laundering and tax evasion (Anti-Black Money Act) and BR-Drs. 851/10, which provides for changing the provision of § 371 AO on voluntary disclosure. This is the result of a development that began with the purchase of tax evaders CDs (these contained lists of German customers from Swiss banks). In the context of this discussion it was argued that impunity through a voluntary disclosure is unjust and should therefore be abolished. On April 20, 2010, the SPD parliamentary group submitted the draft of a law to abolish self-disclosure for tax evasion, which was not discussed any further. Wolfgang Joecks comes to the conclusion that deleting the voluntary disclosure would be nonsense, but puts it up for discussion to consider expanding the reasons for blocking in Section 371 (2) AO. Motions from the governing parties and the parliamentary group of Bündnis 90 / Die Grünen, on which the Bundestag discussed on May 21, 2010, went in this direction. One day before this consultation, the Federal Court of Justice announced a decision in which it changed its case law on voluntary disclosure and made its full scope a postulate.

On March 17, 2011, the Bundestag passed the law to improve the fight against money laundering and tax evasion (Anti-Black Money Act), thereby tightening the voluntary disclosure, Section 371 of the Tax Code - AO in the event of tax evasion. The basis were identical bills from the CDU / CSU and FDP as well as the federal government to improve the fight against money laundering and tax evasion.

The main points of the amendment are:

  • The voluntary disclosure must correct the incorrect information in full, supplement the incomplete information or make up for the omitted information for all tax offenses of a type of tax (e.g. income tax, sales tax) that are not subject to the statute of limitations.
  • The voluntary disclosure is limited to evasion amounts of a maximum of 50,000 euros per act. In addition, criminal prosecution can be waived under the conditions of the newly inserted § 398a AO, in which case an additional benefit of 5% on the amount of evasion must be paid.
  • The point in time from which voluntary disclosure is usually blocked will be brought forward. Previously, the appearance of the tax auditor was the most important reason for blocking in practice.

The change in the law was implemented accordingly.

Amendment 2015

On January 1, 2015, the requirement for voluntary self-disclosure was tightened again. Section 398a AO in the version of the Annual Tax Act 2015 now provides that an additional contribution of 10 percent is to be paid to the state treasury if the amount of the evasion exceeds the amount of 25,000.00 euros (previously 5 percent from 50,000.00 euros). From an evasion amount of 100,000.00 euros, the additional contribution is 15 percent and increases to 20 percent for an evasion amount of 1,000,000.00 euros.

In addition, from 2015 the voluntary disclosure only exempts the punishment if the income for the past 10 years is declared (up to 2014 it was only 5 years). In addition, a voluntary disclosure is no longer permitted if an investigator or an official has appeared for a VAT / LSt review.

history

The right to self-disclosure exempt from punishment has existed uniformly throughout the federal (Reich) since the entry into force of the Reich Tax Code on December 13, 1919, Section 374 from December 23, 1919, was continued as Section 410 with the republication of the Reich Tax Code on May 22, 1931 (changes: RGBl. 1939 I p. 1181., 1184; ( BGBl. 1951 I p. 941 ); ( BGBl. 1967 I p. 877, 881 ), was amended by amending law of 12 August 1968 ( BGBl. I p. 953 ) to § 395 and was adopted by the tax code of March 16, 1976 as § 371 ( § 371 AO)).

requirements

The prerequisite for an effective voluntary disclosure is that the perpetrator of tax evasion corrects his or her offense (corrects or adds incorrect or incomplete information or makes up for omitted information) and pays the evaded tax. The Federal Court of Justice ruled on May 20, 2010 that a tax evader will not be exempt from punishment if, of several foreign accounts previously hidden from the tax authorities, he only reveals those which he feared being discovered. Rather, in order to obtain impunity, one has to "clean the table" with regard to all accounts. This interpretation of § 371 AO was controversial at the time. Until the 2011 amendment, the wording of the standard also allowed the interpretation that a partial correction would also result in partial impunity.

The prerequisites for the exemption from punishment of the voluntary disclosure result from § 371 AO:

  • a declaration of correction,
  • the timely additional payment, and
  • the non-intervention of a blocking reason.

The voluntary disclosure is also effective if it is not designated as such. The taxpayer can describe the voluntary disclosure as a correction of a mistake that was not made intentionally (§ 153 AO).

exclusion

Voluntary disclosure is no longer possible if there is a so-called blocking reason. These are finally mentioned in Section 371 (2) AO:

  • Announcement of an examination order according to § 196 AO. This blocking reason was introduced by the amendment to the Anti-Black Money Act in order to bring the blocking effect forward in the event of a tax audit. It is practically the most important blocking reason.
  • Appearance of an auditor from the tax authorities for examination. If an auditor from the tax authorities has come to the taxpayer for an audit, voluntary disclosure is excluded, as the so-called blocking effect occurs at the beginning of the audit . The blocking effect extends to the tax types and years for which the auditor came. After the amendment of the voluntary disclosure, the same applies to the mere announcement of the examination order.
  • Initiation and notification of criminal tax proceedings. A voluntary disclosure can no longer be effectively reimbursed if criminal proceedings have already been initiated and this has already been communicated to the taxpayer. Here, the blocking effect is limited to the types and years of tax that led to the initiation of the procedure.
  • Discovery. If the offense has been discovered in whole or in part by the tax authorities (so-called objective requirement) and the perpetrator knows this or, when assessing the situation, had to expect it (so-called subjective requirement). The act is discovered when the tax office recognizes in a specific case that the perpetrator has made an incorrect declaration and thereby evaded taxes. The mere fact that the tax authorities have learned of revenue does not lead to the discovery of the crime. Only the comparison with the respective tax file can lead to the discovery of the crime.

Problem point partial self-disclosure

With the amendment to the law, the legislature has implemented the postulate that the BGH formulated, namely that tax evaders must clean the table in order to obtain impunity. This means that the deliberately incomplete disclosure, the partial self-disclosure, should no longer have an exempting effect. This is of great practical importance, for example, in the case of late filing of tax returns (instructions for criminal and administrative fine proceedings, No. 132, Paragraph 1). The late submission results in a tax reduction for a limited period of time; the general opinion is that the tax return received late is considered a voluntary disclosure. If several tax returns are submitted late one after the other, the self-reporting effect of a later tax return can be lost if a previous late tax return triggers the blocking reason for the discovery of the offense according to Section 371 (2) No. 2 AO. The discovery of the crime depends to a large extent on the respective understanding of the definition of the crime . It depends on whether both tax returns are the subject of the same (discovered) act.

From January 1, 2015, the legislature has reintroduced the option of partial self-disclosure for sales tax advance returns and income tax returns. In the context of the annual sales tax return and the tax filings for other types of tax (e.g. capital gains tax filing, building withholding tax filing), the abolition of the partial self-disclosure remains.

Legal consequence

The consequence of an effective voluntary disclosure is the impunity for the tax offenses and tax offenses committed. The effective voluntary disclosure constitutes an obstacle to prosecution ( Section 398a AO). In addition to the prerequisites set out above, a surcharge on the evaded tax must be paid to become effective. The surcharge is 10 percent of the tax evaded if the amount of evasion exceeds EUR 25,000 and does not exceed EUR 100,000, 15% if the amount of evasion exceeds EUR 100,000 and does not exceed EUR 1 million, and 20% if the amount of evasion does not exceed EUR 1 million . Exceeds Euro (Section 371 (2) No. 3 in conjunction with Section 398 a (1) No. 2 AO (as amended from January 1, 2015)).

Personal reason for exclusion

The voluntary disclosure only affects the person who is filing it. The other persons (accomplices, assistants) remain punishable if they have not filed a voluntary report for themselves. However, representation is possible (third-party notification, Section 371 (4) AO).

Voluntary disclosure only affects the tax offense

In a large number of cases, tax evasion is also accompanied by other criminal offenses such as forgery of documents , breach of trust, etc. or administrative offenses . The voluntary disclosure does not exempt them from punishment. This also applies if they occurred together with the tax evasion in a procedural act ( ideal competition ). In these cases, a voluntary disclosure leads to self-incrimination because of the non-tax offenses. In addition, commercial law measures or the withdrawal of the license or the operating permit due to unreliability are not prevented, as these do not result in any criminal consequences.

statistics

In 2010, 26,000 voluntary disclosures were made in Germany. In 2013, 18,032 criminal tax proceedings for voluntary self-disclosures were discontinued in Germany.

The number of voluntary disclosures has increased significantly in recent years (as of the end of 2014):

year Self-disclosures
2011 04,800
2012 08,627
2013 26,641

Austria

In recent years, voluntary disclosure in accordance with Section 29 of the Financial Criminal Law has become of central importance in Austria. Since the 2010 amendment to financial criminal law, there have been numerous decisions by the UFS (Independent Financial Senate) and the highest courts, not least in connection with Liechtenstein foundations. Although the state's claim to punishment can be revoked by self-disclosure, it is not a legal benefit of the legislature, as it is often misunderstood. The Austrian supreme courts interpret the formal requirements extremely narrowly for the return to tax honesty and thus to the development of hidden tax sources.

Self-ad history
number
2003
  
 601
2004
  
 528
2005
  
 461
2006
  
 464
2007
  
 482
2008
  
 654
2009
  
 1,020
2010
  
 2,190
2011
  
 4,439
2012
  
 5,189
Number of voluntary reports

Switzerland

Since January 1, 2010, the federal law on the simplification of post-taxation in inheritance cases and the introduction of self-disclosure without penalty has been in force in Switzerland . The law affects direct federal tax as well as income and wealth taxes of the cantons and communes. The aim of the new regulations is to provide incentives to transfer previously hidden assets and income to taxation.

See also

literature

  • Ramona Andrascek-Peter, Wernher Braun, Rainer Friemel: Tax Code. Textbook. 17th edition. Verlag NWB, Herne / Berlin 2010, ISBN 978-3-482-53627-4 .
  • Philipp Kauffmann: In dubio pro - voluntary disclosure? In: JSE , 2014, p. 136 ff., Zeitschrift-jse.de (PDF)
  • Wolfgang Lübke, Ulrike Müller, Saskia Bonenberger: tax investigation. Recognize, avoid and advise properly. 1st edition. Wiesbaden 2008, Verlag Gabler, ISBN 978-3-8349-0638-0 .
  • Stefan Rolletschke, David Roth: The voluntary disclosure . Verlag CH Beck, Munich 2015, ISBN 978-3-406-68080-9 .
  • Norbert Schrottmeyer: Self-disclosure according to § 29 FinStrG. Commentary and cross-sectional material with remarks by Otto Plückhahn. 2nd Edition. Verlag Linde, Vienna 2012, ISBN 978-3-7073-2153-1 .
  • Bernhard Schwarz: Commentary on the Tax Code (AO). Loose-leaf comment. Verlag Haufe, Freiburg, ISBN 978-3-448-01184-5 .
  • Thomas Wenzler : The voluntary disclosure. Gabler Verlag, Wiesbaden 2010, ISBN 978-3-8349-2263-2 .

Web links

Wiktionary: Self-disclosure  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Homepage of the Austrian Federal Chancellery: Werner Faymann: "Banking secrecy for Austrians remains, negotiations on data exchange". ( Memento of the original from April 20, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (Note: Werner Faymann is Austrian Federal Chancellor) @1@ 2Template: Webachiv / IABot / www.bka.gv.at
  2. ↑ Expulsion from the tax haven . In: Süddeutsche Zeitung , April 11, 2013
  3. ↑ Tax investigations against Uli Hoeneß after self-disclosure. Focus Online , April 20, 2013, accessed April 20, 2013 .
  4. ↑ Everyone must be able to rely on confidentiality . In: Frankfurter Allgemeine Zeitung . No. 97 , April 26, 2013, p. 2 ( online ).
  5. ↑ handelsblatt.com
  6. ↑ Gabriel: SPD would abolish impunity for tax evaders . FAZ.net
  7. ↑ Possible impunity: Bundestag adheres to voluntary tax declarations . Mirror online
  8. ↑ Tax affair: Seehofer demands fairness in dealing with Hoeneß . Spiegel Online , April 27, 2013.
  9. ↑ SPD: Impunity must be off the table . ( Memento from February 22, 2014 in the Internet Archive ) Tagesschau
  10. ↑ Finance Minister Schäuble slows down SPD demands for voluntary disclosure . FAZ.net
  11. ↑ bundestag.de (PDF)
  12. ^ Federal government intensifies the fight against tax evaders . ( Memento from December 10, 2010 in the Internet Archive ) Tagesschau
  13. ^ Draft of the SPD parliamentary group of a law to abolish the self-disclosure exempt from punishment in the case of tax evasion, BT-Drs. 17/1411 (PDF; 70 kB)
  14. ↑ Joecks. In: Die Steuerberatung , issue 5/2010.
  15. ↑ Legislative initiative (application) by Union / FDP, BT-Drs. 17/1755 (PDF; 112 kB)
  16. ↑ Legislative initiative (application) by Bündnis 90 / Die Grünen, BT-Drs. 17/1765 (PDF; 71 kB)
  17. ↑ a b c BGH, decision of May 20, 2010 , Az. 1 StR 577/09, full text.
  18. ↑ Law to improve the fight against money laundering and tax evasion (Anti-Black Money Act) of April 28, 2011, Federal Law Gazette I p. 676 .
  19. ↑ BT-Drs. 17/4182.
  20. ↑ BT-Drs. 17/4802.
  21. ↑ New regulations in the area of ​​self-disclosure exempt from punishment - Federal Ministry of Finance - Service. Retrieved August 16, 2017 .
  22. ^ Self-disclosure in the event of tax evasion, tax advisor lawyer Bonn . August 13, 2017 ( juhn.com [accessed August 16, 2017]).
  23. ↑ Christoph Juhn: Self-disclosure in the event of tax evasion. (PDF) Retrieved August 16, 2017 .
  24. ↑ RGBl. S. 1993. . alex.onb.ac.at. December 13, 1919. Retrieved October 26, 2019.
  25. ↑ RGBl. I p. 161 . alex.onb.ac.at. May 22, 1931. Retrieved October 26, 2019.
  26. ↑ RGBl. 1939 I, p 1181. . alex.onb.ac.at. Retrieved October 26, 2019.
  27. ↑ 1184 . alex.onb.ac.at. Retrieved October 26, 2019.
  28. ↑ In detail: Obenhaus: Threat of prosecution in the event of late submission of tax returns. In: Tax advice. - Stbg - 2012, p. 97.
  29. ↑ § 371 para. 2a AO
  30. ↑ Pump / Krüger, self-disclosure is not a reason for suspension of punishment for all criminal offenses, DStR 2013, 1972.
  31. ↑ Taxpayer Bavaria: Tax voluntary disclosure - new regulations planned
  32. ↑ German Bundestag (ed.): Answer of the Federal Government to the minor question from MPs Richard Pitterle, Klaus Ernst, Susanna Karawansky, other MPs and the DIE LINKE parliamentary group. - Printed matter 18/3036 - Statistical recordings and planned tightening of self-disclosure exempt from punishment . tape 18 , no. 3242 , November 19, 2014, ISSN  0722-8333 , p. 6 ( bundestag.de [PDF]).
  33. ↑ welt.de
  34. ↑ derstandard.at
  35. ↑ Swiss federal law on the simplification of post-taxation in inheritance cases and the introduction of self-disclosure without penalty (PDF)