date | theme

17. September 2018 | Tax evasion: Risk penalty intent offender statute of limitations display

December 2, 2020 | Tax evasion and self-reporting – easily explained and solved

27. April 2021 | Criminal tax proceedings: Procedure and termination of the investigation

4. June 2021 | Investigative proceedings: When does criminal tax proceedings begin?

18. November 2021 | Tax evasion and fraud cannot exist at the same time! Delimitation & Consequences (this contribution)

A tax evasion according to § 370 AO cannot at the same time be a fraud within the meaning of § 263 StGB. Therefore, the crime of § 263 V StGB cannot exist. There is therefore no commercial and gang tax fraud. Nevertheless, serious cases of tax evasion are also taken into account in criminal tax law. We explain the impact and relationship between tax evasion and fraud.

We have already published some articles on the criminal tax proceedings:

Both fraud and tax evasion derive their injustice from factual miscommunication directed against foreign assets. Therefore, given the parallel attack, tax evasion turns out to be a crime family of fraud. Tax evasion, however, is directed against state assets in its target direction. Consequently, criminal tax law necessarily alters characteristics of normal fraud. Nevertheless, the question naturally arises as to whether tax evasion should also be subject to an offence which increasingly takes account of the particularly punitive situations. However, such considerations must be based on the law and take into account the legislative process. Therefore, the law and the legislative procedure must now be analysed to what extent particularly drastic cases of tax evasion should be punished.

Tax evasion is much more specific in its specific design than fraud. Since criminal tax law is explicitly aimed at acts against the revenue of the state, it includes very special features and peculiarities in its concrete form. In particular, within the framework of criminal tax law, there is the possibility of self-declaration that exempts punishment. In addition, there is also tax evasion in a special case in criminal tax proceedings. Since the minimum penalty here is six months and thus less than one year, there is no crime in tax criminal proceedings within the meaning of criminal law § 12 (1) StGB. Consequently, any tax evasion is only an offence. In the context of fraud, however, there is, as explained, a crime.

The legislator has nevertheless processed and evaluated the increased importance of tax evasion. However, this should not be done by simply extending the general level of fraud to tax evasion. Therefore, it is not possible to circumvent the decision of the legislature by extending the limits of § 263 StGB, which was never aimed at state assets. Rather, it was the aim of the legislature to distinguish between the serious and less significant tax evasions in the context of the criminal tax proceedings. This should be seen in particular in that a distinction is made between the intensity of the retraction within the framework of the self-disclosure. The legislator has not denied the conceivable way to develop a crime that specifically addresses particularly punishable cases of tax evasion. He exercised this possibility only in the context of fraud. Since the basic facts of § 263 StGB are not fulfilled, § 263 paragraph 5 StGB cannot be present.

In addition, the criminality of tax evasion would also increase if the general level of fraud applied to it. In this respect, it can be assumed that the characteristics of commerciality and gang are also present in virtually every tax evasion. This is due to the fact that both characteristics have a broad definition due to the different protection of fraud. Thus, commerciality already exists in almost every recurring behavior. Even a gang requires only that at least three coordinated participants act. This characteristic is therefore normally fulfilled for activities in companies. This circumvents the special rules of criminal tax law for such cases.

Even if the scope of protection of § 263 StGB is now extended, the question arises as to how the competitions are to be formed or when which standards are to be applied. The systematic nature of the legal text thus precludes the simultaneous application of fraud and tax evasion.

The literature regularly calls for tax evasion to also create a crime offense. The argument is that fraud and tax evasion are two equivalent offences. However, the wording of the law and the legislative history preclude the introduction of a crime or the validity of the crime of fraud.