Criminal tax law (Germany)

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In the broadest sense, German criminal tax law includes all laws that threaten sanctions for violations of German tax laws . Although containing §§ 369 et seq. Tax Code (AO) some provisions on the legal consequences of certain violations of tax laws, however, is the extent to Blanketttatbestände, that is open laws that are filled by the substantive tax law. The linking of the criminal offense with the special tax law is characteristic of the criminal tax law, in particular for the basic offense of tax evasion ( § 370 AO). After that it makes itself for tax evasionA criminal offense is anyone who, contrary to duty, provides incomplete or incorrect information about facts that are relevant for tax purposes or who, contrary to duty, leaves the tax authorities unaware of such facts ( Section 370 (1) No. 1 and 2 AO). The starting point of any tax evasion is therefore the submission of an incorrect or incomplete tax return or the failure to do so in breach of duty. What is significant and what is in breach of duty results from the individual provisions of special tax law such as the Income Tax Act (EStG) or the Value Added Tax Act (UStG). The success of tax evasion is a tax reduction. Taxes are reduced if they are not determined, not fully or in good time (Section 370 (4) sentence 1 AO). However, the amount of the tax liability or the timeliness of the assessment can only be determined according to the individual tax laws.

The §§ 369-384 AO distinguish between tax crimes and tax offenses.

Tax offenses are usually punished with a fine or imprisonment . In addition to tax evasion ( Section 370 AO), the ban ( Section 372 AO), commercial, violent and gang smuggling ( Section 373 AO), tax stealing ( Section 374 AO) and counterfeiting of stamps ( Section 148 , Section 149 of the Criminal Code ) are among the Tax offenses.

Tax offenses can acc. 377 AO can be punished with a fine. These include the frivolous reduction in taxes ( Section 378 AO), the tax risk ( Section 379 AO) and the inadmissible acquisition of tax refund or tax rebate claims ( Section 383 AO).

In addition, criminal tax norms can also be found in the Value Added Tax Act (UStG). While § 26b UStG punishes damage to sales tax revenue as an administrative offense with a fine of up to fifty thousand euros, § 26c UStG punishes as a criminal offense commercial or gang damage to sales tax revenue with imprisonment of up to five years or a fine.

Investigations under criminal tax law

In the event of a violation or suspicion of a violation of criminal tax law, an investigation is initiated. The authorities involved in the mediation process are:

  • the criminal and fines department of the tax authority (StraBu / BuStra (different names depending on the federal state)): The initiation of the investigation and the implementation of the procedure is the responsibility of the criminal and fines department, provided that it is exclusively a tax offense. In the case of an independent investigation, the authority is equipped with the rights and obligations of the public prosecutor's office. The public prosecutor's office is entitled to withdraw or return the investigation procedure to the criminal and administrative fine matters department at its own discretion. The other way around, the criminal and administrative fine department can also hand over the case to the public prosecutor.
  • The tax investigation : The tax investigation is an investigative authority that is entrusted with the same rights and obligations as police officers in the course of an investigation in accordance with the Code of Criminal Procedure. The tax investigation can be commissioned by the tax authorities to investigate suspicious cases. In order to detect tax crimes, interrogation, seizure, search and preliminary arrest are essential methods of tax investigation.
  • the public prosecutor's office : The public prosecutor's office can also conduct an investigation. The tax authorities play the role of auxiliary officials.

Tax evasion is regulated in Section 370 AO (tax code). The taxpayer acts improperly if he

  1. submitted incorrect or incomplete information on personal tax bases to the tax office
  2. who does not fulfill his duty to inform the tax authorities about tax-relevant facts,

so that this results in a tax advantage for the taxable person.

Accordingly, tax evasion can exist both through active action (370 para. 1 no. 1 AO) (disclosure of false information) and through failure (370 para. 1 no. 2 AO) (withholding information).

Examples of active tax evasion

If business expenses or business expenses are listed in the official tax return form that do not exist or do not exist in the amount, the taxpayer commits tax evasion through active action. Another example is when the property purchase contract is advertised for a lower sum than the actually agreed purchase price. As a result, the taxpayer obtains a tax advantage in real estate transfer tax through deliberate misinformation.

Examples of tax evasion through omission

If tax evasion is committed by omission, then the person responsible does not fulfill his duty to report to the tax office about tax-relevant facts. For example, failure to submit a tax return or failure to report a correction as soon as a failure becomes known is considered an omission.

literature

  • Andreas Schwörer The cross-border use of evidence in tax proceedings and criminal tax proceedings with an additional change in the type of procedure , 1st edition, Books on Demand Verlag, Norderstedt 2009, ISBN 978-3-8370-3610-7
  • Peter Haas, Ulrike Müller: Criminal tax law and criminal tax proceedings . 1st edition. Gabler, Wiesbaden 2008. ISBN 978-3-8349-0697-7
  • Klaus Franzen: Criminal tax law with customs and excise tax law . 6th edition. Beck, Munich 2005. ISBN 3-406-52369-2
  • Thomas Kuhn, Jörg Weigell: criminal tax law . Beck, Munich 2005. ISBN 3-406-53497-X
  • Jo Lammerding, Rüdiger Hackenbroch: criminal tax law . 8th edition. Fleischer, Achim 2004. ISBN 3-8168-1158-2
  • Stefan Rolletschke: Criminal tax law . 2nd edition, Carl Heymanns Verlag, Cologne 2008. ISBN 978-3-452-26723-8
  • H. Eberhard Simon, Claus-Arnold Vogelberg: Criminal tax law . 2nd Edition. Schäffer-Pöschel, Stuttgart 2007. ISBN 978-3-7910-2384-7
  • Michael Stahlschmidt: Criminal tax law . Schmidt, Bielefeld 2004. ISBN 3-503-06363-3
  • Hans W. Többens: Commercial criminal law , 1st edition, Verlag Franz Vahlen, Munich, 2006, ISBN 3-8006-3362-0
  • Annette Warsönke Criminal tax law made easy , 1st edition, Ewald von Kleist Verlag, Berlin 2009, ISBN 3-87440-250-9

Individual evidence

  1. ↑ "Tax lexicon: tax criminal proceedings - investigation procedures" in the tax lexicon of taxlinks.de
  2. ↑ a b "Criminal Tax Law" article by lawyer Frank J. Colin on the subject of criminal tax proceedings
  3. ↑ "Jura forum: tax evasion