evacuation volume | amount of surcharge

from EUR 25,000,00 | 10%

greater than EUR 100,000.00 | 15%

greater than EUR 1.000.000,00 | 20%

Tax evasion is punishable in German law with imprisonment up to five years or with a fine. Particularly serious cases are even punished with a minimum of six months with up to ten years. In addition, further fines are also threatened. Of course, the evaded tax and interest is also due. We show which crimes there are, which risks threaten and how they avoid them. Furthermore, we inform you how you can avoid a persecution by the financial administration with a self-disclosure. Because this is only possible as long as the tax office has not yet gained knowledge about your tax evasion. In any case, the self-notification must not be made to another authority. Then the crime is revealed. In addition, the penalty exemption can also be waived after a self-report if the tax liability is received too late in the account of the tax administration.

1.Tax crimes: Tax evasion is the most common use case

§ 369 AO provides for a large number of tax crimes. This also includes the so-called breaking of the ban (e.g. import of prohibited objects) and the counterfeiting of value marks (e.g. tax marks). In practice, however, tax evasion is the most common type of tax crime. This is committed if taxpayers provide false or incorrect information to the tax authorities (commitment offense). But also the “doing nothing” regularly leads to a tax offense, namely if a legal duty of duty is violated (injunction).

In principle, the tax offence is only completed when the “success” has occurred (§ 370 paragraph 1 second half sentence AO). This is usually the case when the tax evader receives the tax notice, in which too low a tax is shown. However, according to § 370 paragraph 2 AO, the “attempt at tax evasion” is also punishable. This means that the crime also occurs if, for example, the taxpayer makes a wrong tax return and the tax office recognizes this.

2nd Tax Evasion: Commitment Offense vs. Injunction

2.1.

Active crime: For example, if you file a wrong tax return, there is a so-called commission crime. This is especially common in that taxpayers knowingly omit income from their income tax returns or overestimate expenses. For companies, accounting data was already wrongly recorded in advance and balance sheets were wrongly set up.

2.2. Injunction

Passive crime: But even if they do nothing, you can become a tax offender. This is often the case if you have a duty to file a tax return and you do not do so within the scheduled period. When the deadline expires is difficult to determine. While there are fixed filing periods for so-called tax declarations (for example, on the tenth of the following month in the case of pre-sales tax declarations or the tenth of the following month in the case of a permanent extension), the filing period for annual tax declarations is indeterminate (for example, in the case of income tax declarations, this is the case if 90/95 % of the tax declarations are processed by the tax office).

In principle, tax evasion can only be committed by those who act with intent. So this means that the taxpayer must have acted with the aim of consciously shortening the tax (intention).

However, even taking an action whose aim is neither to reduce a tax nor to obtain an unjustified tax advantage can lead to tax evasion. This is the case if the occurrence of a tax reduction or a tax advantage by the taxpayer is simply accepted. Here is an example: Due to lack of time, the taxpayer cannot create his accounting and deliberately appreciates the sales tax advance very generously in his favor. Contrary to expectations, however, the estimate was too low and the tax was thus shortened.

4. tax evasion: perpetrators and participants

In criminal tax law, a distinction is made between the perpetrators and the participants:

4.1.

Example: The taxpayer makes false tax returns for himself.

4.2.

Example: The taxpayer commissions his tax consultant to prepare the VAT advance notification. For this purpose, the taxable person does not provide all the necessary information. Subsequently, the tax consultant transmits the VAT advance notification by electronic means, resulting in a tax that is too low. The tax consultant acted without intent and thus did not commit any tax offense. The taxpayer did not create/submit the VAT advance declaration himself and is therefore “indirect culprit”.

4.3.

Example: The husband creates the wrong income tax return. This is signed by his wife, who is then accomplice.

4.4. Instigators

Example: An entrepreneur recommends that his business partner not include certain income in taxation.

4.5.

Example: An entrepreneur helps his business partner knowingly transport black money to Liechtenstein.

5. Risk of discovering tax evasion

Tax crimes are often detected by the following measures: