Statute of limitations in criminal tax law and tax law
Statute of limitations for prosecution
The statute of limitations for prosecution is an obstacle to prosecution. It is determined separately for each criminal law violated and, to that extent, precludes punishment.
The statute of limitations under criminal law was of particular significance for the voluntary disclosure of criminal offenses pursuant to Section 371 of the German Fiscal Code (Abgabenordnung, AO). The prerequisite for this was that the taxpayer provide accurate information "...on all tax offenses of one type of tax that were not subject to the statute of limitations". The advice on voluntary disclosure therefore always included an examination of the statute of limitations under criminal law for the offences to be disclosed. Since 01.01.2015, this criterion has become less important, as the voluntary disclosure must cover all unlawful tax offences of a tax type, but at least all tax offences of a tax type within the last ten calendar years.
For simple tax evasion/customs evasion pursuant to Section 370 AO, the statute of limitations is 5 years. In contrast, the limitation period for particularly serious cases pursuant to Section 370 (3) sentence 2 nos. 1 to 5 AO is 15 years.
The 15-year statute of limitations for offenses pursuant to Sec. 370 (3) Sentence 2 No. 1 AO ("particularly serious") is disputed in cases in which there is a serious tax evasion, but the actual tax loss is significantly lower (see Graf/Jäger/Wittig-Rolletschke, Komm. Wirtschafts- und Steuerstrafrecht, § 376 AO marginal no. 11; Klein-Jäger § 376 marginal no. 16). Thus, it appears doubtful whether in cases of compensation prohibition pursuant to Sec. 370 (4) sentence 3 AO, in which a particularly serious case is excluded due to the reduction amounts to be taken into account in the penalty assessment, the double limitation period of Sec. 376 (1) AO is appropriate. The same applies in cases of tax evasion for a limited period of time, in which a large amount of tax was evaded, but ultimately only a small amount of damage to the state occurred due to the delay.
A statute of limitations of 5 years applies to the breach of the ban according to § 372 AO (§§ 372 Abs. 2, § 370 Abs. 1 u. 2 AO, 78 Abs. 3 No. 4 StGB). Commercial, forcible or gang smuggling, even in its less serious cases (Sec. 78 (4) StGB), is subject to a 10-year statute of limitations, since Sec. 373 AO provides for a maximum penalty of 10 years' imprisonment (cf. Sec. 78 (3) No. 3 StGB). The same applies to tax evasion on a commercial or gang basis pursuant to Sec. 374 (2) AO. In contrast, simple tax evasion is subject to a limitation period of 5 years.
The administrative tax offenses of reckless tax evasion, tax endangerment and endangerment of withholding taxes (§§ 378-380 AO) also become time-barred after 5 years. In contrast, the administrative offense of damaging sales tax revenue pursuant to Section 26b of the German Sales Tax Act (UStG) is subject to a statute of limitations of 3 years pursuant to Section 31 (2) No. 3 of the German Administrative Offenses Act (OWiG). If the act is committed on a commercial or gang basis, it constitutes a criminal offense pursuant to Section 26c of the Turnover Tax Act (UStG) and only becomes time-barred after 5 years.
The statute of limitations begins with the termination of the offense. In the case of tax evasion by filing an incorrect or incomplete tax return, this is the time at which the tax assessment containing the incorrect tax assessment is notified to the taxpayer. In this context, it is irrelevant whether the tax assessment notice was issued subject to review (§ 164 AO) or provisionally (§ 165 AO).
In the case of non-submission of tax returns in breach of duty, in the event of an estimate of the taxable amount by the tax authority (§ 162 AO), termination occurs upon notification of the tax assessment that is too low. If the estimated assessment exceeds the tax actually forfeited, the tax evasion is still attempted. Here, too, the statute of limitations begins when the tax assessment notice is issued (Kohlmann-Schauf, Komm. Steuerstrafrecht, 45th ed., § 376 marginal no. 96).
If the taxpayer does not submit a tax return and is not assessed, the tax evasion is completed and at the same time terminated at the point in time at which the assessment work of the assessment tax office responsible at the time is completed. In Berlin, according to the circular, general completion of the assessment work in recent years was the case at the end of the second year after the end of the assessment period.
In the case of filing taxes, i.e. in particular value added tax (advance return and annual return [§ 18 UStG]), wage tax (§ 41a EStG) and capital gains tax (§ 45a EStG), completion and regular termination occurs when the advance tax return is received by the tax authorities. (This is in line with general principles, since a tax advance return pursuant to Sec. 168 S. 1 AO is equivalent to a tax assessment subject to review).
An exception applies here in the case of sales tax. The termination does not occur simultaneously with the completion, but only in connection with the annual tax return. No particularities arise if the incorrect or incomplete information of the preliminary returns is repeated in the annual return or if an annual return is not submitted in breach of duty. However, if the false or incomplete information exceeds that in the preliminary returns, the statute of limitations does not begin to run until the overpaid amount is paid out or offset.
Failure to file an advance tax return in compliance with the obligation begins the limitation period with the expiration of the filing deadline, therefore, in the case of an annual return, on 31.05. of the following year. However, extensions of the deadline due to general administrative regulations or individual applications postpone the start of the statute of limitations (Klein-Jäger § 376 marginal no. 38).
In the case of ban breaking, the statute of limitations begins with the arrival of the goods at the place of destination. In the case of smuggling, it begins when the goods have "come to rest" (BGH wistra 2000, 425; BGHSt 3, 40, 44). This also regularly presupposes that the smuggled goods have arrived at their destination and is not yet the case in the event of transshipment in an intermediate storage facility (BGH NJW 2007, 1294, 1295).
If the limitation period is interrupted, the limitation period begins to run again in full. This applies to every case of interruption. However, a limit is drawn by the absolute statute of limitations for prosecution pursuant to Section 78c (3) sentence 2 StGB: Once twice the statutory limitation period has expired, the act is in any case time-barred. For tax evasion, this is therefore 10 or 20 years.
The interruption of the statute of limitations for a tax offense is effected in accordance with §§ 78c StGB, 376 para. 2 AO in particular by the announcement that preliminary proceedings or proceedings for the imposition of a fine have been initiated against the accused, the first interrogation of the accused, the judicial seizure or search order and the arrest warrant. However, the interrupting act must relate to a concretized act and a concretized perpetrator. The initiation of proceedings "against unknown persons" or "against the responsible persons of company X" are therefore not sufficient. The perpetrator must at least be identifiable on the basis of documents on file (see BGHSt 24, 321, 323; NJW 2007, 2648, 2649).
Statute of Limitations for assessment
The commencement of the limitation period for the assessment of tax is generally regulated in Section 170 of the German Fiscal Code (AO). Pursuant to Section 170 (2) of the German Fiscal Code (AO), the limitation period for the assessment of all property or transfer taxes, if a tax return or a tax declaration is to be filed or a report is to be submitted, shall commence at the end of the calendar year in which the tax return, the tax declaration or the report is filed, but no later than at the end of the third calendar year following the calendar year in which the tax arose.
The assessment period is one year for excise taxes and excise tax refunds and four years for other taxes or tax refunds (Section 169 (2) sentence 1 AO).
If a tax was evaded intentionally (not necessarily by the tax debtor himself!), the assessment period is extended to 10 years. With regard to recklessly evaded taxes, the assessment period is 5 years.
In cases of simple tax evasion (statute of limitations of 5 years), taxes can therefore be assessed retrospectively even for acts that can no longer be prosecuted. It is also irrelevant for the assessment that the act can no longer be punished due to a voluntary declaration in accordance with § 371 AO.
Insofar as the tax evasion or reckless tax evasion has not been committed by the tax debtor himself or by a person whom he uses to fulfill his tax obligations, the normal assessment period shall apply if the tax debtor proves that he has not gained any pecuniary advantage from the act and that it is also not based on the fact that he has failed to take the precautions required in the course of business to prevent tax evasion (Section 169 (2) sentence 3 AO).
The expiry of the statute of limitations for tax assessment is suspended by measures specified in Section 171 AO. Particularly relevant in connection with criminal tax proceedings are the implementation of investigative measures by the tax investigation office or customs investigation office, the announcement of the initiation of criminal tax proceedings, the commencement of an external audit and the submission of a voluntary declaration.
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