Tax evasion (Germany)

from Wikipedia, the free encyclopedia

The evasion of taxes in Germany a tax offense , which according to § 370 of the Tax Code will be punished (AO) with imprisonment of up to five years or a fine. In particularly serious cases, the punishment is imprisonment from six months to ten years. The attempt is also punishable. Impunity occurs if the perpetrator reports himself before the tax authority begins the investigation and pays the evaded tax within a period to be set by the tax authority (Section 371 (3) AO).

A distinction must be made between tax evasion and frivolous tax shortening ( Section 378 AO), which is merely an administrative offense and can therefore be prosecuted by the tax authorities , but does not have to (principle of opportunity ), while the prosecution of tax offenses is mandatory ( principle of legality ).

Since the tax code only relates to federal and state taxes, the states have passed local tax laws . Evasion of municipal taxes, e.g. B. Dog or entertainment tax then falls under the term tax evasion .

requirements

  • Objective fact
    • The tax offices and / or the main customs offices / customs investigation offices are given incorrect or incomplete information about facts relevant for tax purposes or
    • the tax authorities are left in ignorance of significant tax facts or
    • the use of tax characters or tax stamps is omitted contrary to duty and
    • this leads to a reduction in taxes. According to Section 370 (4) AO, taxes are specifically reduced if they are not determined, not in time or not in full. The law is therefore linked to tax assessment, not tax payment.
  • Subjective fact
  • Attempting tax evasion is also a criminal offense ( Section 370 (2) AO).

The problem is the question of when a tax crime is completed if no explanations have been given. In the case of tax returns that are to be submitted at regular intervals (e.g. income tax returns , see also Section 149 (2) AO), as a rule, completion must be assumed when the assessment work is completed. It should be noted that the respective state tax authorities determine when the assessment deadline occurred.

In the case of advance notifications (in particular sales tax , wage tax ), tax evasion is already complete when the statutory pre-notification deadline has passed, since the tax notification is equivalent to a tax assessment subject to review (see Sections 168, 370 (4) sentence 1 HS. 2 AO) . If the tax declaration is not submitted in due time, the tax is inevitably not determined in time and consequently a tax reduction has occurred.

Threat of punishment

tax evasion

  • Imprisonment up to 5 years or a fine
  • In particularly serious cases (Section 370 (3) AO): imprisonment from six months to ten years.

The assessment of the penalty is mainly determined by the amount of the tax loss.

  • Fines of up to 50,000 euros are usually imposed.
  • A custodial sentence (on probation) can also be imposed from 50,000 euros. Above this amount of damage, there is also regularly a particularly serious case according to § 370 Paragraph 3 Sentence 2 No. 1 AO.
  • As a rule, imprisonment should be imposed from 100,000 euros.
  • From 1,000,000 euros, a probable penalty (up to and including two years' imprisonment) is only to be imposed if there are "particularly serious mitigating reasons".

In the case of undeclared work , Section 14 (2) sentence 2 SGB IV must also be observed. The black wage is viewed as a net wage, from which a gross wage is calculated.

In 2013, 2,129 judgments with penalties or fines were issued in Germany for tax offenses. In the same year, tax evasion was imprisoned for a total of 2,154 years and fines of 44 million euros. 18,032 criminal tax proceedings were discontinued due to voluntary disclosures.

Aid

The aid for tax evasion is a criminal offense. In addition, § 71 AO results in joint liability for the taxes evaded and the interest arising therefrom. It can also affect the tax advisor, his employees and the authorized signatories, etc.

Statute of limitations

Tax offenses generally expire after five years. The statute of limitations begins with the end of the act, i.e. usually when the relevant tax assessment notice is issued. In the case of tax evasion through omission, the time at which the perpetrator would have been assessed at the latest is decisive, provided no assessment notice is issued. This is regularly the case when the assessment work is completed.

With the Annual  Tax Act 2009, the statute of limitations for the cases of particularly serious tax evasion named in Section 370 (3) AO has been adjusted to the tax assessment period and has since been  ten years in accordance with Section 376 (1) AO.

On May 29, 2013, the Federal Council introduced a draft law to improve the fight against tax crimes in the Bundestag. According to this, the criminal prosecution period for all cases of tax evasion should be ten years without exception. The draft was rejected by the federal government because of concerns about the legal system and ultimately rejected with the votes of the government groups (CDU / CSU and FDP) against the votes of the SPD and Bündnis 90 / Die Grünen, with the left abstaining.

Self-disclosure

In cases of tax evasion, the law opens up the possibility of gaining impunity by filing a voluntary disclosure ( Section 371   AO).

Social evaluation

A dwindling tax morale and the occasional perception of tax evasion as a " trivial offense " tries to explain financial psychology with negative role models, low probability of detection, low expectation of punishment and, last but not least, a lack of transparency of expenditure. In particular, the low expectation of punishment compared to property crimes is often viewed very critically, as the result is that financially strong offenders tend to be spared despite high amounts of damage. This assessment is reinforced by the fact that high income from assets is easier to disguise or more difficult to determine than income from work.

Another problem with the social classification are the tax amnesties (e.g. the possibility of a penalty-exempting subsequent declaration in the case of lump-sum taxation according to the law on the penalty-exemption declaration, ended on March 31, 2005), which legalize tax evasion retrospectively. However, the establishment of the account retrieval process shows a contrary trend . See also the Anti-Tax Evasion Act .

Since 2016 the European Parliament has had its own committee to investigate money laundering , tax avoidance and tax evasion, including the necessary political consequences. Especially as a result of the Panama Papers and to review the business relationships of banks, politicians and oligarchs or to tax havens. The similar legal situation or interests in the fight against tax evasion, tax avoidance, money laundering, offshore business and corruption therefore requires effective instruments (disclosure, formal requirements , transparent checked registers, contractual security , etc.) and possibly tougher sanctions against those involved and their legal violations (e.g. B. Backdating of contracts, bogus contracts, bogus managers, etc.). In particular, the creation of new tax havens or tax loopholes should be prevented.

In the wake of the Liechtenstein tax affair , the SPD General Secretary Hubertus Heil repeatedly referred to “tax evaders” as “new anti-social ”.

Tax amnesty

Tax amnesty ordinance of 23 August 1931

The Federal Ministry of Finance called the fiscal amnesty law as a "bridge to tax honesty". The federal government had expected additional tax income of up to 5 billion euros, but according to press reports only 1.24 billion euros were achieved. With the expiry of the Amnesty Act, controversial control powers of the tax authorities came into force on April 1, 2005 ( account query ), e.g. B. the possibility of automated account retrieval unnoticed by the bank and its customers according to § 24c KWG. The tax authorities receive information about the name and account number of the bank customer, but not about account balances and movements. If the account of the tax authorities was not previously known, they can then send a specific request for information to the credit institution obliged to provide information in order to obtain further information in order to be able to check the proper taxation of any capital income.

literature

  • Hans-Peter Duric: Possibilities for penalties when issuing or filling in incorrect preference certificates. In: The German customs officer. (DZB) 2/1981, F 48 ff.
  • Hans-Peter Duric: The offense of tax evasion, illustrated by a typical smuggling and mineral oil tax evasion case. In: DZB 6/1982, F 187 ff.

Web links

 Wikinews: Tax Evasion  - In The News

Individual evidence

  1. ↑ BGH 1 StR 416/08 - judgment of December 2, 2008
  2. ↑ 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. 8 ( PDF file ).
  3. ↑ BT print. 17/13664 (PDF, 0.1 MB)
  4. ↑ Plenary Protocol (BT) 17/250, TOP26, p. 32082f. (Decision on printed matter 17/13664). (PDF; 6.6 MB) In: Open Parliament, (course of the procedure) . German Bundestag, June 27, 2013, p. 620 , accessed October 30, 2014 .
  5. ↑ cf. Florian Klenk, Josef Redl “Brussels looks to Panama” in Der Falter of October 12, 2016, p. 12; to the problem u. a. Philip Faigle “We dismantle the rule of law” in Die Zeit from April 18, 2016; Jan Dams, Ileana Grabitz , Martin Lutz, Karsten Seibel, Nina Trentmann “Forget Panama - money is really being laundered here” in “Die Welt” on April 13, 2016; Florian Klenk, Josef Redl in “The Big Offshore Show”, Der Falter from April 6, 2016.
  6. ↑ Peter Nowak : Die neue Asoczialen - The hunt for tax evaders is lined with populist tones , Telepolis, February 18, 2008