Tax evaders CD

from Wikipedia, the free encyclopedia

The term tax evader CD (also abbreviated tax CD ) is a media catchphrase for storage media that contain stolen data records from bank customers and are offered to foreign tax authorities for purchase or whistleblower platforms such as WikiLeaks for publication.

Purchase by German authorities

chronology

German authorities bought CDs with tax data for the first time in January 2006 . In the Liechtenstein tax affair , a former LGT employee offered the Federal Intelligence Service bank details for around 800 people, including Klaus Zumwinkel , who was convicted of tax evasion in 2009 . Most of the data was bought by the state of North Rhine-Westphalia . In February 2010, under the then North Rhine-Westphalian Finance Minister Helmut Linssen, a CD with the names and account details of Credit Suisse clients was purchased for 2.5 million euros. In October 2010 tax investigators paid for customer data from the Swiss bank Julius Baer and in October 2011 for around 3,000 account information from Luxembourg . In June 2010, Lower Saxony acquired access to 35,000 records of alleged tax evaders. The purchase of such data carriers led to legal and political disputes between Germany and Liechtenstein and especially Switzerland. In August 2010, the state government of Baden-Württemberg refused to buy a “tax evaders CD”. In 2012 Norbert Walter-Borjans bought several CDs for North Rhine-Westphalia without naming the banks concerned. At the beginning of December 2012, the state government in North Rhine-Westphalia confirmed that one of the tax CDs came from the major Swiss bank UBS and that the CD contained information on around 750 foundations and 550 other cases with an investment volume of more than 2.9 billion euros. In April 2013, the state of Rhineland-Palatinate confirmed the purchase of a tax CD with around 40,000 data records for four million euros.

Legal position

In the previous cases, the banks were in Switzerland or Liechtenstein . “Theft” of customer data is a criminal offense in these countries due to a violation of banking secrecy . The acquisition of the data by the German tax authorities serves to prosecute tax evaders within the framework of criminal tax law . Such a CD is material evidence within the meaning of the Code of Criminal Procedure (StPO). The competent criminal prosecution authority for tax evasion (punishable according to § 370 Tax Code ) is the fines and criminal matters department of the tax office or the public prosecutor's office , while the tax investigation department merely investigates the matter.

According to the prevailing opinion, there is no prohibition on the use of evidence under criminal procedural law. In November 2010, the Federal Constitutional Court permitted the use of data from such data carriers in criminal prosecution . In this way, information about suspected tax evaders acquired from informants can be used in investigative proceedings. It does not matter whether the purchase of the data was originally lawful (2 BvR 2101/09). The reasoning for the judgment stated: “The 'data theft' was not attributable to the Federal Republic of Germany . Even if international conventions were circumvented, this would be harmless because the violation of an international treaty that did not grant personal rights would not result in a prohibition of exploitation. Incidentally, the possibly illegal event ('data theft' and purchase of the 'stolen' data) was concluded; through the use of the data in the investigation against the complainant, the Convention would not be affected again. "Further," evidence that has been obtained from private individuals, even if this was done in criminal reinforced manner fundamentally recyclable, so that alone from the informant committed crimes in the assessment of a possible prohibition of exploitation need not be taken into account from the outset. "

In December 2010, Legal Tribune Online wrote, among other things, about the verdict: “It is by no means a final legal assessment of all questions related to such CDs. Above all, the account data CD decision is not a carte blanche to be able to carry out public prosecutor investigations at will in the future, as some now believe (the BVerfG has already decided [shortened] elsewhere). It is only permissible that persons named on the CDs can be investigated. There is also the general possibility of house searches . It has not yet been decided whether these 'fruits of the poisonous tree' may themselves be used as a basis for a criminal conviction. In the end, this is the much more important question, because house searches rarely reveal the desired evidence. These are usually not even stored in Germany to protect against such investigative measures. ”On the same platform, tax lawyer Arndt Schmehl also emphasizes that tax justice and the rule of law are not mutually exclusive, but rather“ go hand in hand ”. In addition, the judiciary must follow the principle that it is obliged to research the truth, but not at any price. In the case of tax data CDs, it is important to note that criminal behavior in obtaining information does not render the evidence unusable, provided that the private informant is solely responsible for this.

In addition to the use of evidence, questions arose as to how the procurement of the data and the incitement to do so are to be assessed under criminal law (see below).

consequences

After another through the media sales offers "tax evaders CDs" had become known, went with German tax authorities regularly self-display one, in the hope of amnesty effect in accordance with § 371 Tax Code (AO). In any case, the voluntary disclosure has a mitigating effect. Whether the voluntary disclosure may also have an exempting effect is generally controversial, because according to the AO, the exemption from punishment does not apply if the tax office has discovered the tax evasion before receipt of the voluntary disclosure.

Half of the cost of CD purchases was allocated to the federal government and the rest to the federal states. The purchase prices add up to a total of 9 million euros (15th / 16th legislative period), of which North Rhine-Westphalia only had to pay part. In North Rhine-Westphalia alone, more than 640 million euros were raised. In addition to 3.4 million euros in fines and money runs out sentences and suspended proceedings Westphalia North Rhine-Justice were the Association of fines set at the level of around 200 million euros. In addition, around 70 million euros came from the evaluation of tax CDs in North Rhine-Westphalia alone. The additional income from voluntary disclosures of an estimated EUR 370 million was only possible because tax evaders could no longer be sure that they would go undetected.

At the end of November 2012, the German Federal Council and, subsequently, the mediation committee of the German Bundestag rejected a tax agreement with Switzerland .

The passing on of data that falls under Swiss banking secrecy to German tax investigators triggered criminal, legal and diplomatic disputes between Switzerland and Germany. The Swiss Federal Council decided to support the banks, and in September 2010 the state government authorized the federal prosecutor's office to start investigations into industrial espionage. Several people were arrested and charged in Switzerland. Tax investigators from North Rhine-Westphalia were also announced for arrest by the federal prosecutor's office in 2012 because they had incited criminal offenses in Switzerland.

The Austrian who had sold the data collection to the German authorities received 2.5 million euros for this. The money was transferred to accounts in Germany, Austria and the Czech Republic. After the Austrian was arrested in Switzerland, he committed suicide in the cell. His heirs and Switzerland fought for a long time about the fee for the purchase of the tax CD. After a long legal battle it was decided that the money should be collected as the proceeds of the crime. The remaining part of the fee on the accounts in Austria and the Czech Republic went to the Swiss authorities.

In 2012, Switzerland issued a national arrest warrant against three tax investigators from North Rhine-Westphalia, including the head of the tax office for criminal offenses and tax investigations in Wuppertal , on suspicion of aiding in industrial espionage and for violating Swiss banking secrecy ( Art. 47 ) . All three are said to have been involved in buying a CD in 2010. According to the Swiss federal prosecutor Michael Lauber , they are suspected of having given "orders to spy on the major bank Credit Suisse ". The Swiss authorities who requested mutual legal assistance in Germany made use of Article 273 of the Criminal Code . This regulation is directed against industrial espionage or against an "economic intelligence service" and threatens those who spy out a trade secret with a prison sentence "in order to make it available to a foreign official body or a foreign organization or private company or their agents". In an interview with Schweizer Radio DRS , Lauber said: “There is a specific suspicion that clear orders have been given from Germany to spy on information from Credit Suisse,” since internal papers were passed on in addition to tax data. However, the previously requested legal assistance to question the officials remained unanswered. The internal company information passed on to the German authorities included, in particular, a Powerpoint presentation from which it emerged that Credit Suisse itself assumed that more than 80 percent of its German customers had apparently invested untaxed money.

In April 2017, the former Swiss police officer Daniel M. from Zurich was arrested in Frankfurt for espionage activities. He is said to have been entrusted several times with operations by the federal intelligence service as a freelancer, in particular to collect information about the tax investigators from North Rhine-Westphalia. Its exact role and its contribution to the investigation are unclear. Ueli Maurer , then Defense Minister and responsible for the Swiss secret service, had confirmed the use of a spy to the Tages-Anzeiger and said that he had also informed the entire Federal Council and the parliamentary business audit delegation about the NDB operation. Later Daniel M. is said to have sold bank details, which turned out to be forgeries, to Werner Mauss and a third party. Mauss complained about this to the Swiss authorities. Thereupon M. was arrested in Switzerland. The Swiss Federal Prosecutor extended the criminal proceedings against M. to Mauss and the third man, and the accused said during interrogation that they had worked for secret services in a variety of ways for years. About an ongoing German tax procedure against Mauss in Bochum, the Swiss protocols got into the hands of the German federal prosecutor, with which he was informed about the identity and activities of Daniel M., whereupon he had Daniel M. arrested. Apparently, however, the identity of the German tax investigators had already been disclosed in 2010 through a dossier from the Düsseldorf public prosecutor's office, which was sometimes sent to lawyers for tax evaders.

WikiLeaks

While so-called tax CDs were mainly sold to German authorities, Rudolf Elmer , former bank director of Julius Baer Bank & Trust Company , a subsidiary of the Swiss bank Julius Baer in the Cayman Islands , passed personal customer data on to WikiLeaks several times . In 2007 he had secret customer data published on WikiLeaks, but some of it was fake.

On January 17, 2011, Elmer presented WikiLeaks spokesman Julian Assange with two CDs with allegedly around 2,000 data from customers in the United States, Great Britain, Austria and Germany, including "well-known pillars of society" such as business people, artists and around 40 politicians. Later in custody, Elmer stated that the data carriers were empty and therefore did not contain any bank details. This was confirmed in July 2011 by two persons close to Elmer who had attended the press conference in London. One of them said she received the information directly from Assange.

Because of this transfer of customer and business records, as well as the earlier transfers to WikiLeaks, Elmer was arrested and taken into custody. Shortly before, he was sentenced to a fine on probation by a Swiss court for attempted coercion, threats and violation of Swiss banking secrecy . In 2004, Elmer forwarded the bank's records to the media and tax authorities and threatened bank employees. Elmer laid appeal against the judgment. Sharing the records with WikiLeaks was not part of the indictment.

Offshore leaks

Since April 4, 2013, a consortium of media (mostly newspapers) from 46 countries has published reports on tax havens . The reports are based on a hard drive that contains 260 GB of data with 2.5 million documents with 130,000 tax evasion names from around 170 countries and which have been evaluating these media for months; they also practice investigative journalism .

According to research by Norddeutscher Rundfunk and Süddeutsche Zeitung, for example, Deutsche Bank has founded more than 300 companies and trusts in several tax havens (mostly in the British Virgin Islands ) through its Singapore branch . In many cases she appointed her subsidiary Regula Limited as director. According to critics, it aided the obfuscation of money flows and thus facilitated possible crime.

literature

  • Sebastian Sonn: Criminal liability for private theft and government purchase of incriminating customer data: Using the example of the tax CD affair. Hamburg 2014 (dissertation), ISBN 978-3-8300-7801-2 .

Web links

Individual evidence

  1. ↑ a b Industrial espionage or justified search? , tagesschau.de from April 3, 2012 ( archive version ( Memento from April 4, 2012 on WebCite ))
  2. ↑ Baden-Württemberg does not want to buy CD's for tax evaders. Spiegel Online, August 22, 2010, accessed August 18, 2012 .
  3. ↑ NRW determines after the purchase of tax CDs. In: 20 minutes from August 9, 2012
  4. ↑ New tax CD reveals massive fraud ( memento from February 12, 2013 in the web archive archive.today ), tagesschau.de, December 4, 2012
  5. ↑ Tax investigation: Land buys tax CD - cool "consistently against tax fraud". (No longer available online.) Ministry of Finance Rhineland-Palatinate , April 16, 2013, formerly in the original ; accessed on October 16, 2015 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / fm.rlp.de  
  6. ↑ Karlsruhe allows use , n-tv.de of November 30, 2010
  7. ↑ BVerfG, 2 BvR 2101/09 from November 9, 2010, paragraph no. (1 - 62) on bundesverfassungsgericht.de, accessed on November 30, 2010
  8. ↑ Press release No. 109/2010 of November 30, 2010 , bundesverfassungsgericht.de
  9. ^ Björn Demuth: No license for criminal prosecution. In: Legal Tribune Online, December 28, 2010
  10. ^ Arndt Schmehl: Rule of law and tax state, indivisible linked. In: Legal Tribune Online, September 6, 2012
  11. ↑ Source: Press Ministry of Finance of North Rhine-Westphalia, as of March 14, 2013
  12. ↑ a b Thomas Knellwolf, Markus Häfliger, Mario Stäuble: So spied Daniel M. In: Tages-Anzeiger . May 5, 2017 ( tagesanzeiger.ch [accessed on May 11, 2017]).
  13. ↑ Marcel Gyr: Victory after a long legal battle: Switzerland receives money for tax CD . In: Neue Zürcher Zeitung . May 12, 2017 ( nzz.ch [accessed June 3, 2017]).
  14. ↑ Thomas Knellwolf: Federal Prosecutor Michael Lauber knows his Wuppertal. In: Tages-Anzeiger from April 4, 2012
  15. ↑ Switzerland is investigating German investigators , Spiegel Online from March 31, 2012
  16. ^ The Swiss Tax Uprising , Spiegel Online from April 2, 2012
  17. ↑ Switzerland seeks legal assistance for an arrest warrant against tax investigators , Zeit Online from April 2, 2012
  18. ↑ The Tax Scandal That Is Nobody, Zeit Online, April 2, 2012
  19. ↑ Hans Leyendecker : Schweizer Daten-Krimi , Süddeutsche Zeitung of April 2, 2012, page 5
  20. ↑ a b Marcel Gyr: Daniel M. further exonerated . In: Neue Zürcher Zeitung . No. 127 , June 3, 2017, p. 13 ( nzz.ch [accessed on June 3, 2017]).
  21. ↑ Markus Häfliger, Thomas Knellwolf, Mario Stäuble: Federal Councilor was informed about espionage . In: Tages-Anzeiger . May 5, 2017 ( tagesanzeiger.ch [accessed June 3, 2017]).
  22. ↑ Arrest for suspected secret service agent activity. Press release. In: The Federal Prosecutor General at the Federal Court of Justice. April 28, 2017. Retrieved April 30, 2017 .
  23. ↑ The man who whistled Julius Baer has to go to court in January ( Memento of the original from August 29, 2011 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. in: The Sunday of December 4, 2010 @1@ 2Template: Webachiv / IABot / www.sonntagonline.com
  24. ↑ a b Wikileaks star appears before the Zurich court ( memento from January 13, 2013 in the web archive archive.today ), in: Schweizer Fernsehen from January 12, 2011
  25. ↑ WikiLeaks starts the fight against tax havens Spiegel Online on January 17, 2011
  26. ↑ Why Elmer remains in custody in: Tages-Anzeiger from March 3, 2011
  27. ^ Discs Swiss banker gave to WikiLeaks held no secrets in: Reuters from July 12, 2011; Archive version ( Memento from August 6, 2011 on WebCite )
  28. ↑ Elmer's CDs turn out to be a failure in: Tages-Anzeiger of July 12, 2011
  29. ↑ Ex-banker Rudolf Elmer files a complaint against pre-trial detention in: Tages-Anzeiger of January 27, 2011
  30. ^ Judge: Elmer is a whistleblower out of revenge in: Tages-Anzeiger from January 19, 2011
  31. ↑ Ex-banker appeals against judgment ( memento from January 13, 2013 in the web archive archive.today ), in: Schweizer Fernsehen from January 20, 2011.
  32. ↑ Did Deutsche Bank help tax fraudsters? Tagesschau, April 4, 2013