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

18. November 2021 | Tax evasion and fraud cannot exist at the same time! Delineation and consequences

xxxxxxx | Tax offense in distinction to the tax offense: reckless tax reduction vs. tax evasion (this contribution)

§§ 369 paragraph 1, 377 paragraph 1 AO define which offences are tax offences and which tax offences. Formally, tax crimes and tax offences mark their location in a tax law by then also being punishable or punishable with a fine. The concept of tax misconduct is considered a comprehensive term for tax offences and tax offences. Specific procedural rules therefore apply to them. In this article, we explain the difference between tax offense and tax evasion. We also refer to the distinction between tax evasion and reckless tax cuts.

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

In contrast to other offences, tax offences and tax offences are those acts and infringements which are punishable under tax laws or can be punished with fines. Tax laws are such regulations that regulate the creation or realization of tax claims within the meaning of § 3 AO. Therefore, the general criminal fraud does not apply to tax evasion. However, the tax code itself is also included as a tax law, and §§ 370 ff AO there. Finally, the scope of tax crimes is extended to Section 369 (1) No. 1 to No. 4 AO. §§ 370 ff AO are also fully applicable to EU taxes.

Nevertheless, unless expressly provided otherwise in the tax laws, the general provisions of criminal law or administrative offenses shall apply. In doing so, prohibitions on the use of evidence or procedural provisions of general criminal law apply.

Fundamentally, tax offences and tax crimes differ according to the severity of the tax violation of duty. If a tax offence is classified as a tax offence, an ethical judgment is made at the same time. On the other hand, ethically indifferent or non-essential violations of general administrative matters, which do not substantially affect the protection of legal interests, should only be punished as mere injustice. Consequently, the suitability for tax offences and tax evasion must be assessed differently. In the case of tax offences within the framework of §§ 373-383a AO, the legislature has classified the offence as tax offence either because of the minor importance of the legal interest to be protected or because of the merely abstract danger of the offence.

The different non-value judgments of tax offences and tax crimes have an impact mainly on the legal consequences. The tax offence may have a custodial sanction in the form of a custodial sentence. However, these legal consequences cannot affect tax offences. Unlike the penalty, the fine is not entered in the Federal Central Register. A tax offence can be punished with a fine of a maximum of 50,000 euros. This upper limit is also reduced in cases of mere hazardous events depending on the facts. In contrast, a tax offence can be fined a maximum of 10,800,000 euros. The maximum daily rate is 30,000 euros for a maximum of 360 days.

A penalty may be imposed only by a court. The ordinary criminal courts are also responsible for this in the case of tax crimes. On the other hand, the tax authorities have jurisdiction to impose fines in relation to tax offences.

No penalties can be imposed on companies in Germany, only fines. For this purpose, a criminal offence or an administrative offence must have been committed by a representative body or by a person treated as responsible. This must continue to relate to a breach of an obligation on the part of the company or have led to an enrichment of the company. The maximum fine is 10 million. Euro. For mere administrative offences, the maximum limit is reduced to 5 million. Euro.