As part of the tax investigation, it happens that the tax investigator searches the premises of the accused. During the search, however, the accused has rights and can also save himself from making mistakes. We explain how you should avoid which mistakes and how you should behave in the ongoing taxation process.

According to § 208 AO, the central task of the tax investigation office is to investigate tax evasion and tax offences. However, this requires the existence of an initial situation (§ 152 II StPO). Since this task is the central task of the tax investigation agency, it also acts in principle in the investigation procedure.

Post from the tax investigation office does not always mean that you are also under investigation in the context of criminal tax proceedings. Rather, it is also the task of the tax intelligence agency to determine the tax bases in the context of research into tax evasion and tax offences. As a result, the tax intelligence office must determine the tax bases, on the one hand, for the purpose of establishing the evasion success and, on the other hand, for the purpose of determining the tax in the normal tax procedure.

In principle, the tax investigation must inform the accused at the latest upon notification of the initiation of the criminal proceedings about his right not to testify on the matter according to § 163a III, IV StPO. If the instruction has been omitted, you should insist that the statement according to § 136 I 2 StPO is not used. Nevertheless, it should be noted that, according to the BFH, the facts can still be evaluated for tax purposes if the information is accidentally omitted.

Violation of the obligation to provide information under § 393 I 4 AO does not have the effect that the findings from such an external examination in the taxation procedure are subject to a prohibition of exploitation. The only difference is if the infringements of the procedure were serious or if the instruction was deliberately omitted. Then they should also complain about the exploitation of the knowledge gained in those proceedings in the taxation procedure.

The tax investigation does not announce its search, rather it uses the surprise effect. Accordingly, it regularly happens that they are in front of the door very early in the morning. Nevertheless, you must keep the version and should never engage in the criminal charge or spontaneously comment on it. First, you should contact your defender. They are not entitled to wait until the appearance of the defender from the start of the search, but they can act to ensure that the defender waits until he has arrived. We advise you to contact your defender by phone and then hand over the conversation to the tax investigator.

During the tax investigation, you should coordinate a search strategy with your defender as early as possible. In individual cases, you can therefore lead the tax investigation to the "right" place. This allows them to shorten the search and prevent the occurrence of random finds. Furthermore, it should be ensured that only the tax investigation officers can actively carry out the search. In particular, auditors shall not participate in the search. Consequently, they are not allowed to review papers such as balance sheets, accounting books, receipts, storage media and computers. The right to search the documents is according to § 110 I StPO only the tax investigation.

Control of the search warrant also plays a central role. The search decision shall be checked to ensure that the searched entities are precisely described. In practice, the search warrant often does not extend to existing cars or annexes of the accused. In addition, account data of the accused is not described sufficiently precisely. in the case of erroneous data, there is consequently no power of intervention for the control search to carry out further investigations at these points.

The search warrant must continue to be executed within six months of its issuance. Otherwise, he loses his justifiable power. It is questionable whether the corona pandemic will not lead to an extension of the deadline. Search warrants which are significantly older than six months should nevertheless no longer have legal effect. Search warrants, which are only a few days older, however, still have to be observed.

Upon completion of the tax search, the defender will talk to the lead investigator about the search carried out. He always opposes the surrender of objects and should also request the documentation of the seized or confiscated objects. It shall check whether the evidence is correct and complete. Particular attention is paid to the fact that the confiscated objects and the location are correctly designated. A collective designation is only permitted if there are many individual documents. Then, for example, the cardboard box with the documents can be specified as the location of discovery. It would be best if they themselves produced a record of the search carried out.

After completion of the search by the tax investigation, the ongoing taxation procedure must also be kept in mind alongside the criminal tax procedure. Care must therefore be taken that tax assessments are kept open by objection and action, if necessary, in order not to create a prejudice for criminal proceedings. In practice, it is often possible to conclude criminal tax proceedings relatively quickly if a solution to the taxation procedure has been found at the same time. For example, there is the possibility of an actual understanding. But they should only seek them in the presence of their defenders.