Specialised defence in criminal tax law

On this page, you will find general information about criminal tax law and questions that we, as specialised lawyers, encounter on a regular basis. This information is not a substitute for individual advice. Experience shows that every case is different. Please feel free to contact us if you have any questions.

Criminal tax law regulates the criminal and administrative consequences of violations of tax obligations. The main offences are tax evasion (sec. 370 of the German Fiscal Code, “AO”) and negligent tax reduction (sec. 378 AO). Criminal tax law combines material tax law with criminal law and criminal procedure law.

Whether a criminal offence has been committed can only be determined by a detailed tax law review. Without analysing the relevant individual tax laws, it is not possible to assess whether taxes have been evaded or unjustified tax advantages have been obtained.

Tax evasion refers to the intentional declaration of incorrect or incomplete information that is relevant for tax purposes, or the failure to declare such information in breach of one’s obligations, thereby reducing tax liability or obtaining unjustified tax advantages.

Intent is an essential prerequisite. Not every incorrect tax return is punishable by law. Work errors, ignorance or organisational deficits do not in themselves constitute tax evasion.

Criminal tax proceedings regularly run parallel to tax assessment, audit or appeal proceedings. Both proceedings are legally independent of each other (Section 393 of the German Fiscal Code (AO)), but follow different procedural rules.

In criminal proceedings, there is a comprehensive right to remain silent. In tax proceedings, on the other hand, there are far-reaching obligations to cooperate. Information provided in tax proceedings can be used in criminal proceedings. This duality constitutes one of the greatest risks for those affected and requires a coordinated defence strategy.

In practice, tax authorities often assume intentional action, especially in cases involving high additional taxes or complex circumstances. Proving the absence of intent is regularly a key starting point for the defence.

Even if intent cannot be established, an administrative offence with a fine may be considered under certain circumstances.