Voluntary self disclosure in customs criminal law

Voluntary self disclosure in customs criminal law

Self-disclosures are of practical significance not only for property and transfer taxes administered by the state tax authorities, but also for customs duties, since import and export duties under the Customs Code are taxes within the meaning of the German Fiscal Code (AO). Accordingly, these can be evaded pursuant to § 370 AO.

Consequently, an exempting voluntary declaration according to § 371 AO is also possible in case of evasion of import and/or export duties. The penalty-exempt self-disclosure is a personal penalty exemption waiver and does not apply to third parties. In addition, the voluntary declaration does not constitute a ground for self-cancellation for offenses other than tax evasion pursuant to Section 370 AO that were committed at the same time as the tax or customs evasion (e.g. document offenses, breach of trust). In particular, it does not apply to acts of commercial, violent or gang smuggling or, for example, tax evasion (Sections 373, 374 AO). In addition, the assessment of taxes and ancillary tax payments as well as the claim as a liable debtor remain unaffected by the voluntary declaration.

The prerequisites for the penalty-exempt effect of the voluntary disclosure are:

  • A declaration of correction,
  • the timely payment of arrears, and
  • the non-occurrence of a blocking reason.

In this context, the legislator has repeatedly tightened the regulations on voluntary disclosure, in particular the grounds for blocking, by means of the Act to Combat Clandestine Money, which came into force on May 3, 2011, and most recently on January 1, 2015. Thus, the following circumstances in particular lead to the denial of the exemption from punishment by the voluntary disclosure:

1. if, in the case of one of the non-statute-barred tax offences brought for self-disclosure, prior to the correction, supplementation or catching up.

a) the perpetrator or his representative has been notified of an audit order pursuant to Section 196 AO; or

b) the offender or his representative has been notified of the initiation of criminal or administrative fine proceedings, or

c) an officer of the tax authority has appeared for the tax audit, for the investigation of a tax offense or a tax misdemeanor.

This reason for blocking includes not only those acts that are covered by the investigative intent of the officer who appeared, but also those acts that are factually related to the previous subject of the investigation. For example, if new offences arise which are not covered by the original intention to investigate, but which merely cover other taxation periods with regard to the same types of taxes at identical sources.

2. one of the tax offences has already been discovered in whole or in part at the time of the correction, supplementation or supplementation and the perpetrator knew this or should have expected it upon a reasonable assessment of the facts.

It is not necessary for there to be sufficient suspicion within the meaning of Section 170 (1) and Section 203 of the Code of Criminal Procedure. Furthermore, it is not a prerequisite for this ground for blocking that the perpetrator has already been identified, as the ground for blocking only requires the discovery of the act and not also of the perpetrator. Knowledge of the actual bases of taxation is also not necessary. It is sufficient that concrete indications of the act as such are known. However, when an act is discovered within the meaning of Section 371 (2) No. 2 AO is always a decision of the individual case. However, the act is always discovered if a comparison with the tax returns of the taxpayer shows that the tax source was not or not completely stated. It is not a prerequisite of the ground for blocking that the act was also intentional in this respect.

3. the tax evaded or the unjustified tax advantage obtained for oneself or another person exceeds an amount of EUR 25,000.00 (previously EUR 50,000.00) per offense.

Should this reason for blocking apply, however, a waiver of prosecution may be considered under the conditions of § 398 AO. In return, the offender must pay the evaded taxes as well as the evasion interest and additionally pay a sum of money in favor of the state treasury, the amount of which depends on the amount of evasion and is between 10% and 20% of the evaded taxes.

Regardless of the effectiveness of the voluntary declaration, all taxes and interest on evasion that have not become time-barred must be paid. For the voluntary declaration to have an exempting effect, the taxes and interest must be paid within a time limit to be set by the tax authorities.

If a failed voluntary disclosure has been made, this is regularly taken into account in mitigation of the penalty.

A voluntary declaration - effective or ineffective - can have an impact on permits and authorizations, particularly in the area of customs law. For example, customs authorizations are regularly dependent on the applicant or authorization holder fulfilling certain personal requirements. Such requirements are, for example, that " no serious or repeated offences" have been committed against customs regulations, Art. 145 (1) (a) Union Customs Code (Art. 253c in conjunction with Art. 14h Customs Code Implementing Regulation), or that the applicant has been convicted of a serious criminal offense in connection with his economic activity, Art. 24 Union Customs Code-IA (Art. 253b (3) (c) Customs Code Implementing Regulation). In this context, according to the service regulations of the Federal Ministry of Finance, the European term "offenses against customs regulations" includes, in particular, all criminal offenses in customs law and related areas of law. Accordingly, tax and customs evasion are among these offenses. By filing a voluntary declaration, regardless of whether it is effective or not, the main customs office responsible for authorizations and permits becomes aware of any misconduct on the part of the applicant or authorization holder. Consequently, after gaining this knowledge, a rejection of the application or a revocation of the authorization, e.g. the AEO status, can be considered, since the behavior underlying the voluntary declaration allows conclusions to be drawn about the reliability of the customs trader.

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