Excise Criminal Law

Excise Criminal Law

1. general

Excise duties are taxes that are levied on the consumption or use of certain goods. For reasons of administrative economy and expediency, these taxes are levied on the trader or manufacturer, who then has the option of passing the tax on to the consumer through the purchase price.

Excise taxes are levied on goods imported from third countries and on products released for consumption in the excise territory. In the narrower sense, excise duty evasion only includes the evasion of excise duties that are not levied as import duties, i.e. when imported from third countries in Germany. This is because in the case of importation from third countries, the regulations for customs duties apply by dynamic reference on the basis of the individual excise tax laws. In this case, the excise duty is owed as an import duty, Section 1 (1) Sentence 3 of the German Customs Administration Act (ZollVG).

Excisable goods may only be produced in a tax warehouse. Tax warehouses are places where or from which excisable goods may be produced, handled or processed, stored, received or dispatched under duty suspension, i.e. untaxed.

Persons operating one or more tax warehouses require a permit as a tax warehouse holder. These must be set up in such a way that the course of production, handling or processing, as well as the whereabouts of the excisable goods can be tracked within the framework of tax supervision.

Currently (2015), the following excise taxes are levied in Germany by the federal government:

• Energy tax
• Tobacco tax
• Electricity tax
• Spirits tax
• Beer tax
• Sparkling wine/intermediate products tax
• Coffee tax (not harmonized)
• Alcopops tax (not harmonized)
• Nuclear fuel tax (not harmonized)

The individual tax objects are regulated in the respective excise tax laws by reference to the Combined Nomenclature (Regulation [EEC] No. 2658/87 of 23.07.1987). The only exception is the tobacco tax, as the subject matter of the tobacco tax is defined in the Tobacco Tax Act.

2. tax incurrence

In principle, excise duty arises when the goods are released for consumption, Art. 7(1) of Directive 2008/118. This is the case when the goods are neither under a duty suspension arrangement nor under a customs suspensive procedure. The release for consumption may take place in various ways (Art. 7(2)(a-d) RL 2008/118):

the withdrawal of excisable goods, including unlawful withdrawal, from the duty suspension arrangement;
the holding of excisable goods outside a duty suspension arrangement, where no excise duty is levied in accordance with the applicable provisions of Community and national law;
the production of excisable goods, including unlawful production, outside a duty suspension arrangement;
the importation of excisable goods, including unlawful importation, unless the excisable goods are placed under a duty suspension arrangement immediately upon importation.

The complete destruction or irretrievable loss of goods under a duty suspension arrangement shall not be considered as release for consumption, Art. 7(4) of Directive 2008/118.

The basic element of the taxable event is the authorized removal of the goods from the tax warehouse, unless another tax suspension procedure follows. Withdrawal is the physical removal from the spatial limits of the tax warehouse. The spatial extent of the tax warehouse results from the respective permit. It is irrelevant whether the removal took place with the knowledge and intention of the tax warehouse owner. Excise duty also arises in the event of unauthorized removal from the tax warehouse (e.g. theft); this leads to an immediate obligation to submit a tax return and to excise duty becoming due immediately (cf. Section 15 (1), (2) BierStG; Section 144 (1), (2) BranntwMonG; Section 8 (4), (6a) EnergieStG; Section 15 (1), (2) SchaumwZwStG). Withdrawal shall be deemed to have occurred if the authorization is lost due to expiry of the permit.

Consumption in the tax warehouse is equivalent to withdrawal. Consumption occurs when the goods are used for their intended purpose. In the case of consumption - in contrast to the processing of goods - the goods no longer exist at the end. This is possible through substantial consumption (the beer is drunk), but also through consumption in the individual sense, i.e. a good is still physically present, but the excise object has lost its independent existence (an energy product is processed into a lubricant - the lubricant is no longer a tax object). There is also consumption in the legal sense. In this case, the product still exists, but it has lost its character as a tax object in the legal sense (e.g., filling gasoline for lighters in special containers of item 9810 of the HS).

Another taxable event is irregularity. Goods subject to excise duty are released for free circulation as a result of an irregularity in the movement under duty suspension. An irregularity is a case in which the movement or part of the movement cannot be properly completed, Art. 10 (6) of Directive 2008/118 (§ 14 (1) TabStG, § 142 (1) BranntwMonG, § 13 (1) SchaumwZwStG, § 13 (1) BierStG, § 10 (1) KaffeeStG, § 14 (1) EnergieStG). The main case of application is when the procedure is not settled because the goods do not arrive at the consignee or are not exported from the excise territory of the Community, e.g. due to physical impact that does not present itself as destruction or irretrievable loss (the beer kegs are stolen, fall unnoticed from the loading area due to lack of securing, the driver drinks some bottles of the cargo). Similarly, irregularity considerations must be made when the recipient of the goods notices a shortage or excess quantity.

a) The electronic procedure (EMCS)

In principle, the transport is carried out within the framework of the electronic procedure (Excise Movement and Control System - EMCS). The EMCS serves to combat tax fraud and thus to secure the collection of excise duties. Within the framework of the electronic procedure, a movement of excisable goods is documented with the help of the successive stages of the electronic administrative document (e- VD) from the issuance by the consignor to the acknowledgement of receipt by the consignee.

The consignor (= tax warehouse keeper or registered consignor) has to send the draft of the electronic administrative document (e-VD) to the competent main customs office before the start of the transport using EMCS according to the officially prescribed data set. Provided there are no objections, the e-VD is provided with a reference code (ARC) and transmitted to the consignor as an electronic administrative document (validation). During transport, the carrier must carry a printout of the e-VD transmitted by the competent main customs office, a commercial document containing the same data or a commercial document showing the reference code. The e-VD may be cancelled or updated under certain conditions. To the extent that the goods have been received, the consignee shall submit a report of receipt indicating any inconsistencies, such as quantities that are too small or too large.

b) The tax debtor and his obligations

The tax debtor is the tax warehouse keeper as consignor or the registered consignor and, in addition, any other person who provided security, the person who removed the products from the transport or on whose behalf the products were removed, insofar as any person who was involved in the unlawful removal and knew or reasonably should have known that the removal was unlawful (see, for example, Section 143 (6) No. 5 BranntwMonG, Section 14 (6) EnergieStG). Several tax debtors are joint and several debtors, i.e. each of them is obliged to pay the entire tax debt and may, if necessary, demand compensation from the other joint and several debtors.

The tax debtor shall immediately submit a tax return for the excise duty due immediately and pay it.

The tax declaration shall be made on officially prescribed forms:

• Form 1276 "Tax declaration for products (spirits and goods containing spirits) in individual cases".
• Beer: Form 2075 "Tax declaration for beer in individual cases".
• Intermediate products: Form 2453 "Tax declaration for intermediate products on a case-by-case basis".
• Sparkling wine: Form 2404 "Tax declaration for sparkling wine in individual cases".
• Alcopops: Form 2783 "Tax declaration for alcopops in individual cases"
• Tobacco Products: Form 1625 "Tax Return for Tobacco Products"
• Coffee and goods containing coffee: Form 1816 "Tax declaration for coffee and/or coffee-containing goods in individual cases".

It does not matter for the tax liability whether the consignor himself has withdrawn the goods from the tax suspension procedure, as the regulations focus on an objective circumstance. Theft also constitutes unlawful removal, which results in the incurrence of excise duty liability.

Production without permission is generally prohibited. The tax debtor of an excisable product manufactured without a permit is the manufacturer and any person involved in the act (Section 15 (4) No. 2 TabStG, Section 143 (6) No. 2 BranntwMonG, Section 14 (4) No. 2 SchaumwZwStG, Section 14 (2) No. 2 BierStG, Section 11 (4) No. 2 KaffeeStG, Section 9 (2) EnergieStG).

3. (Consumption) tax evasion

The circle of possible tax debtors and also of possible perpetrators and participants (instigators and accessories) in excise tax evasion is very broad (cf. Sec. 14 (4) No. 4 BierStG, Sec. 143 (6) No. 5 BranntwMonG, Sec. 14 (6) EnergieStG, Sec. 14 (4) No. 4 SchaumwZwStG).

a) Perpetration and Participation

The general principles of criminal law apply to perpetration and participation in excise tax evasion. According to these principles, anyone can be a perpetrator or participant in excise tax evasion who either fulfills the elements of § 370 of the German Fiscal Code (AO) himself, i.e., in simplified terms, acts on the legally owed excise tax to the detriment of the tax creditor, or instigates or assists in this. It is not necessary that the perpetrator of the tax evasion is also the taxpayer; the vicarious agents of the actual taxpayer may also be considered as perpetrators and participants.

b) Excise tax evasion by omission in breach of duty

Tax evasion can be committed by action and omission. Since the tax violations leading to the incurrence of an excise tax are in principle connected with the obligation to file a tax return without delay, however, the perpetrator of excise tax evasion by omission in breach of duty pursuant to Section 370 (1) No. 2 AO can only be a person obliged to file a return under the tax law. Due to the numerous disclosure and declaration obligations under excise law, the omission variant of Section 370 (1) No. 2 AO is particularly relevant for excise tax evasion.

The violations can be systematized as follows:

• Manufacture of a product subject to excise duty without permission.
• Infringements in the movement of excisable goods from the free movement of other Member States
• Improper use of goods exempt from excise duty
• irregularities in the suspension of excise duty

The systematization applies to the harmonized excise duties. For non-harmonized excise duties (coffee, alcopops and nuclear fuel tax) as well as for individual harmonized excise duties, there are special features with regard to possible violations (e.g. the catch-all situation of differential taxation under Section 20 of the Energy Tax Act in the case of reclassification when gas oil taxed at a reduced rate is used as fuel).

c) Typical Acts of (Excise) Tax Evasion

Statistics are collected by the Customs Administration to identify typical acts of excise tax evasion. These include:

• Misuse of heating oil as fuel in motor vehicles or work machines ("heating oil dieselization"),
• Purchase of untaxed coffee from other EU member states for commercial purposes
• Transfer of fuel from other EU member states in retrofitted auxiliary tanks of trucks,
• Obtaining untaxed spirits from other EU member states and processing them into drinking spirits before selling them in Germany,
• Bringing diesel fuel as a rust preventative from another member state and declaring it as diesel fuel before selling it in Germany,
• Obtaining gasoil for alleged processing by adding base oils to a tax-free lubricating oil and actually selling it as diesel fuel,
• Production of spirits without distilling rights ("moonshine"),
• sale of deputies,
• Illegal removal of excisable goods from a tax warehouse,
• irregularities in the tax suspension procedure

4. the tax declaration

If the excise duty arises, the tax debtor must immediately submit the officially prescribed form and calculate the tax himself (tax declaration) (Section 144 (2) BranntwMonG, Section 15 (2) SchaumwZwStG, Section 15 (2) BierSG, Section 12 (2) KaffeeStG, Section 9 (2) EnergieStG). The tax declaration is understood to be an intentional statement with a declaratory value.

a) Special features of the spirits tax

Special features arise in the case of the spirits tax. In the case of spirits withdrawn from breech distilleries, the quantity of alcohol contained therein is officially determined and a tax assessment is issued for the spirits tax incurred as a result of the withdrawal.

As with the other excise duties, there are also tax concessions (§§ 152 ff. BrantwMonG, §§ 43 ff. BrStV) and tax reliefs (§§ 154 ff. BrantwMonG, § 56 BrStV) for the spirits tax. The violations and consequences under tax liability and criminal tax law are identical. This also applies to tax suspension (§§ 133 ff. BrantMonG, §§ 5 ff. BrStV).

b) Special Features of Tobacco Tax

In contrast to the other types of excise duty, tobacco duty is generally payable by using German tax stamps. This means devaluing and affixing the tax stamps to the retail packages. The tax stamps must already have been used at the time the tax is incurred.

The obligation to use tax stamps also results in deviations from the procedure of tax declaration after the tax has arisen with regard to tax declaration. The manufacturer or importer must order the tax stamps from the main customs office in Bünde using an officially prescribed form and calculate the tax stamp debt himself. The tax stamp debt then arises with the purchase of the tax stamps in the amount of their tax value.

The tobacco tax arises according to § 23 para. 1 TabStG in the person of the supplier and the recipient, when he gains possession of the tobacco products. For the tobacco tax due immediately, the debtor must immediately submit a tax return. If this is omitted, the facts of Section 370 (1) No. 2 AO are realized. Since the perpetrator has then also omitted the use of the tobacco tax marks, he therefore also realizes the facts of § 370 paragraph 1 No. 3 AO. The question of competition then arises. Both penal provisions are linked to independent obligations under tax law.

c) Possibility of tax evasion in the context of tax declaration

Since the calculations of the tax liability are placed in the hands of the taxpayer, manipulation in recording the correct quantity is not remote (e.g. use of non-calibrated containers or manipulation of measuring equipment). It is also conceivable that the declared quantity differs from the quantity actually taken into free circulation under tax law or that an incorrect tax rate is assigned to the excisable goods. These acts of deception fall under the variant of Section 370 (1) No. 1 AO. Under the crime modality of the § 370 Abs. 1 No. 1 AO also falls, if the perpetrator by incorrect data over steuerlich substantial facts unlawful tax reliefs obtains (e.g. discharge of taxed ship fuel in accordance with § 52 EnergieStG in connection with. § 96 EnergieStV or operating materials for agriculture pursuant to § 57 EnergieStG in conjunction with § 103 EnergieStV. § 103 EnergieStV).

5. tax-exempt uses

In excise law, there are tax-exempt uses of excisable goods. For example, energy products can be used tax-free in the tax exemption procedure or distributed, i.e. given away for tax-free use. The prerequisite for the tax exemption procedure is a permit. This applies, for example, to the commercial use of undenatured spirits for the production of vinegar (Section 152 (1) No. 2 BranntwMonG) and to coffee produced during the testing of machines for the production of coffee and not supplied to third parties for consumption (Section 20 (1) No. 3 KaffeeStG).

6. special regulations in the case of transfer from another member state

Due to the realization of the internal market and the abolition of controls at the internal borders as of 01.01.1993, special regulations were required to realize the destination principle. Therefore, there are special regulations for the purchase and possession for commercial purposes, mail order business, purchase by private persons as well as the movement of excisable goods of free circulation of other Member States.

The individual excise tax laws provide that excise duty arises when the excisable product is obtained from the fiscal free circulation of another Member State and is held in possession or used for the first time in the tax territory (cf. § 23 TabStG; § 149 BranntwMonG; § 20 SchaumwZwStG; § 20 BierStG, § 17 KaffeeStG, § 15 EnergieStG - although the term "transfer" is used here). Whether the goods are in free circulation for tax purposes in another member state is determined by the legal regulations of that state. However, it can generally be concluded that if the goods are not brought into the tax territory under tax suspension, they are in free circulation for tax purposes in the other member state. A definition of "commercial purpose" is not found in the respective excise tax laws. In this respect, there is no clear regulation under which the respective procedure can be subsumed. In some cases, a negative distinction must be made between the transfer and the transfer for private purposes. In some cases, the "definition" from the Trade Regulation Act is also used, according to which commercial activities are deemed to exist if there is an "independent, entrepreneurial, sustainable and profit-making participation in general traffic". If this is the case, the "commercial purpose" is undoubtedly present. However, it does not follow from this that if this "definition" is negated, a reference to private purposes is given. Thus, "possession for commercial purposes" also exists if a private person holds the excisable goods in his possession and also transports them himself, but has not acquired the goods for his own use.

The tax also applies to goods that enter the tax territory by mail order. The supply must take place between two Member States, and the mail order company must not be established in the same Member State as the recipient. The recipient of the goods must be a private individual. The person may neither be an authorized warehouse keeper nor a registered consignee, as these can only be traders. In addition, Article 36(1) of Directive 2008/118 states that the person must not be engaged in an independent economic activity.

When a private person acquires excisable goods in another Member State and transports the goods to the tax territory, these goods are "tax-free" according to the respective wording of the individual excise laws. The condition is that the goods are acquired for personal use. According to Art. 32 (2) of Directive 2008/118, the following points must be taken into account: the commercial status and the reasons of the owner for the possession; the place where the goods are located or the mode of transport; documents concerning the goods and the nature or quantity of the goods. Quantitative limits are specified in the various implementing regulations, above which it is rebuttably presumed that the excisable goods were acquired for commercial purposes. These specifications do not represent exempt quantities, since an acquisition for commercial purposes can also be present if the quantity is undercut. It is therefore always a question of the individual case.

With regard to the characteristic "personal use", the Federal Fiscal Court (ruling dated September 8, 2011 - VII R 59/10) has ruled with regard to Section 20 (1) of the Tobacco Tax Act (TabStG), old version (now Section 22 (1) TabStG): "The wording of the provision does not contradict the interpretation made by the Fiscal Court, according to which goods subject to excise duty are also acquired for the use of the private purchaser if they are to be made a gift to another private person due to close personal relations with the latter. This applies in any case if there are family ties between the private individual and the donee - as in the case in dispute. Also who buys gifts for family members from own resolution, covers thereby its own need. [...] In any event, it cannot be inferred from the [...] regulation that the tax advantage is granted only if the cigarettes are also smoked by the private individual who purchased them in another Member State, so that only smokers would benefit from the tax privilege."

7. special manifestations

a) Special features of the energy tax.

The tax arises on energy products that contain an approved label (fuel oil label) and are kept ready, dispensed, carried or used as fuel. Labeled energy products may not be held ready, delivered, carried or used as fuel.

Heating oil is kept ready if the person authorized to dispose of it is able to supply the mineral oil to the prohibited purpose at any time and without major effort. The content of a heating oil tank is subject to taxation if it was at least also used for refueling motor vehicles.

The intention to act must refer to a disposal of the fuel in Germany.

Mixing labeled energy products with other energy products is generally prohibited. The labeling substances may not be removed or their effectiveness impaired (Section 46 (1) EnergieStV, Section 21 EnergieStG). Exceptions can be found in §§ 47, 48 and 49 EnergieStV. In case of infringement, the tax according to § 21 EnergieStG arises in the amount of the tax rate according to § 2 para. 1 EnergieStG. The tax amount already paid at the deviating tax rate is not taken into account, as double taxation is intended.

In addition to the fulfillment of the external facts, an internal intention to possess, use or apply the heating oil as fuel is required.

The person liable to pay tax is the person who performs one of the aforementioned acts. Several tax debtors are joint and several debtors (§ 21 EnergieStG).

Energy tax law provides for numerous tax exemptions for the use and distribution of energy products (§§ 24 ff. EnergieStG). Energy tax arises when energy products are used or distributed contrary to the permission, are not taken into operation or their whereabouts cannot be determined. The perpetrator of the improper use can be anyone, including those who steal or embezzle the energy products. Tax-exempt energy products may only be supplied to the permit holder and only for the permitted purposes. According to Section 30, Paragraph 1 of the Energy Tax Act, energy tax arises if energy products are used or supplied contrary to the purpose stated in the permit. This is also the case if the energy product is supplied to a non-authorized person who has gained at least indirect possession of the energy products. The tax also arises when a person uses energy products for their intended purpose without a permit. If the permit holder transfers the energy products to a non-entitled person, the non-entitled person also becomes liable for the tax. The consequence of the tax liability is the obligation to immediately file a tax return for the immediately due energy tax.

Excise tax evasion through the improper use of an energy product is completed at the time when the perpetrator has not submitted the notification pursuant to Section 153 (2) AO (notification obligation in the event that the conditions for a tax exemption, tax reduction or other tax concession subsequently cease to apply in whole or in part). If the perpetrator was not aware of the legal obligation, he completes the excise tax evasion by improper use at the latest at the time when he does not immediately submit a tax declaration for the improperly used energy product to the main customs office.

According to the Energy Tax Act, there are also tax reliefs for energy products § 46 ff. Energy Tax Act. Tax relief is defined in § 45 EnergieStG and includes remission, refund and compensation of an incurred energy tax.

Tax evasion can also be committed with regard to a tax relief, because this is a tax benefit within the meaning of Section 370 (4) AO. Obtaining unjustified tax advantages is one of the two consequences of the offence specified in Section 370 (1) AO, in addition to causing a reduction in tax.

For the tax relief a permission is necessary. An attempt to defraud the tax authorities is a criminal offense if the perpetrator has done everything necessary in his opinion to submit the incorrect tax return to the main customs office. Even after the application has been received by the main customs office, the act initially remains at the attempt stage. The success of the wrongfully obtained tax advantage only occurs when the tax has been assessed or when a tax administrative act has been announced, i.e. only through outwardly directed action by the authority.

aa) Fuel oil dieselization

Heavy mineral oil intended for heating is labeled and subject to a reduced tax rate pursuant to Section 2 (3) EnergieStG. The energy tax arises when labeled energy products (heating oil) are held ready, delivered, carried along or used as fuel. In accordance with § 21 EnergieStG, a tax declaration must be submitted immediately. If the perpetrator fails to do so, he or she is in breach of duty to keep the tax authorities in ignorance of tax-relevant facts and is liable to prosecution for tax evasion (here: excise duty evasion) under Section 370 (1) No. 2 of the German Fiscal Code (AO). Accordingly, tax evasion exists in particular if the perpetrator uses designated heating oil intended for combustion as fuel.

The tax according to § 21 EnergieStG already arises when energy products are held ready, which contain approved labeling substances and are held ready as fuels. Heating oil is held ready as fuel if the person authorized to dispose of it is able to supply the mineral oil for the prohibited purpose at any time and without major effort (BFH, judgment of 22.09.1992 - VII R 82/90). However, the tax liability does not arise if heating oil labeled in Germany was neither kept ready nor carried as fuel in Germany, but was transported abroad and kept ready there and used for refueling. This is because the intention to act must relate to the disposal of the heating oil as fuel in Germany (Munich Tax Court, ruling dated May 6, 2002 - 3 K 4026/99).

bb) Refueling

Pursuant to Sec. 16 (1) Sentence 2 No. 2 EnergieStG, fuels that a private individual acquires in free circulation in another Member State for his or her own use and transports into the tax territory are only tax-exempt if they are transported in the vehicle's main tank or the reserve tank up to a total quantity of 20 liters.

If mineral oil is not transported in the main container or the reserve container, this constitutes an atypical procedure and is taxable (FG Munich, ruling dated 15.03.2007 - 14 K 3282/05).

If the conditions for a private shipment, which is tax-exempt, are not met, the tax arises in accordance with § 15 EnergieStG, since a shipment for commercial purposes is to be assumed.

b) Special features of the electricity tax

The tax debtor is basically the supplier, who passes on the tax to the consumer via the electricity price. If the supplier withdraws electricity for self-consumption from the supply network, he is also liable for the tax (§ 5 StromStG). The tax also arises when electricity is illegally taken from the supply network. The person liable for the tax is the one who illegally withdraws electricity (§ 6 StromStG). There are also tax exemptions, tax reductions and tax reliefs in electricity tax law.

If the electricity is withdrawn by companies in the manufacturing industry or in agriculture and forestry as holders of a permit for the tax-privileged withdrawal of electricity for the corresponding purposes, various tax reductions may exist. An enterprise in the sense of electricity tax law is the smallest legally independent unit. In addition, despite the fact that they are not legally independent, owner-operated enterprises (Eigenbetriebe), which are managed on the basis of the Eigenbetriebsgesetze or the Eigenbetriebsverordnungen of the federal states, are also enterprises within the meaning of § 2 No. 3 StromStG. Companies in the manufacturing industry also include the GmbH, but not the GmbH & Co KG. The main customs offices have their own examination competence when classifying a company in the classification of economic sectors of the Federal Statistical Office.

If electricity is withdrawn for a purpose other than that specified in the permit, the tax is incurred at the standard tax rate (Section 9 (6) StromStG). Withdrawal for a purpose other than that specified in the permit is also deemed to have occurred if the permit was issued or continues to exist on the basis of false or incomplete information.

The tax debtor for the unjustly granted reduction is the permit holder (§ 9 par. 7 StromStG).

If tax-privileged electricity is supplied to a non-authorized recipient, the non-authorized recipient is also the tax debtor in addition to the supplier. Several tax debtors are joint and several debtors (Section 9 (8) StromStG).

c) Transfer without knowledge (here: cigarettes)

In particular, it should be noted that according to the BFH (decision dated March 25, 2013 - VII B 232/12), a "transfer" within the meaning of Section 23 (1) sentence 1 TabStG also exists if the cigarettes are transferred to the tax territory without the knowledge of, for example, the owner and driver of a vehicle. Accordingly, the driver becomes liable for the tax. The only exception to this rule is the personal luggage of passengers, which was not the case here.

Knowledge is therefore irrelevant. This is because, according to the concept of possession under civil law, the driver's intention to possess, which is required in addition to the actual control of the goods, does not only extend to those items in his load of which he is aware of the presence or even the nature (BFH, judgment of 10 October 2007 - VII R 49/06).