White-Collar Criminal Law

Voluntary disclosure is a ground for waiving criminal liability, which makes it possible to avoid prosecution through complete and timely disclosure.​

A. Positive requirements for voluntary disclosure

1. Completeness requirement (§ 371 para. 1 AO):​
§ 371 para. 1 AO:

“Any person who, in relation to all tax offenses of one type of tax, corrects incorrect statements, supplements incomplete statements, or supplies omitted statements to the tax authority in full, shall not be punished for these tax offenses under § 370.”

Key elements:

• All non-time-barred tax offenses of one type of tax
• At least 10 calendar years retroactively (§ 371 para. 1 sentence 2 AO)
• Complete – no partial voluntary disclosures
• Submission of supporting material – the tax office must be able to calculate the taxes

BGH case law on minor deviations:
BGH judgment 1 StR 631/10 (BGHSt):​

Minor deviations of up to 5% of the underpaid amount may be harmless – but only if they were not made intentionally!

2. Payment of taxes and interest (§ 371 para. 3 AO):​

Voluntary disclosure only creates a conditional entitlement to exemption from punishment. Final exemption is only achieved once the disclosing party pays:

• The evaded taxes
• The evasion interest (§ 235 AO – 0.5% per month = 6% p.a.)
• The back-payment interest (§ 233a AO – since 2019: 1.8% p.a.)

within the reasonable deadline set by the authority.

B. Blocking grounds for voluntary disclosure (§ 371 para. 2 AO)

Voluntary disclosure is excluded if any of the following blocking grounds apply:

1. Notification of the audit order (§ 371 para. 2 No. 1a AO):
Once a tax audit has been announced (written audit order pursuant to § 196 AO), voluntary disclosure is only possible for periods not covered by the audit.
Important: Since 2015, the blocking effect is limited to the material and temporal scope of the audit!

2. Arrival of the auditor (§ 371 para. 2 No. 1c AO):
Once the tax auditor arrives, voluntary disclosure is blocked – limited to the scope of the audit.

3. Initiation of criminal proceedings (§ 371 para. 2 No. 1b AO):
Notification of the initiation of tax criminal proceedings blocks voluntary disclosure entirely for the named offenses.

4. Discovery of the offense (§ 371 para. 2 No. 2 AO):
Voluntary disclosure is excluded if the offense had already been discovered and the perpetrator knew or had reason to expect this.

BGH, 9 May 2017 (1 StR 265/16, wistra 2017, 390):
“Discovery of the offense requires findings that, upon preliminary assessment, establish the probability of a convicting judgment.”

5. EUR 25,000 threshold (§ 371 para. 2 No. 3 AO):

For evasion exceeding EUR 25,000 per offense, there is no automatic exemption from punishment; instead, proceedings are discontinued subject to a surcharge payment under § 398a AO:

• 10% surcharge for evasion up to EUR 100,000
• 15% surcharge for evasion between EUR 100,000 – EUR 1 million
• 20% surcharge for evasion exceeding EUR 1 million

6. Aggravated cases under § 370 para. 3 AO (§ 371 para. 2 No. 4 AO):
In particularly serious cases (e.g. commercial tax evasion, gang-related offenses), voluntary disclosure is excluded.

A. Difference: Tax Audit vs. Tax Investigation

B. Rights during a search by the tax investigation unit

1. Review the search warrant:
The search must be ordered by a judge (§ 105 StPO). Only in cases of imminent danger may the tax investigation unit order the search itself.

Check points:

• Is there a written search warrant?
• Is the alleged offense described in concrete terms (type of tax, period)?
• Do the address and premises match?

2. Exercise the right to be present:
You have the right to be present during the search (§ 106 StPO). The tax investigators are not required to wait for your lawyer, but in practice a reasonable waiting period is often granted.
Recommendation: Call a lawyer immediately – telephone consultation during the search is also permitted!

3. Exercise the right to remain silent:
You have the right to remain silent (§ 136 para. 1 sentence 2 StPO, § 393 para. 1 sentence 4 AO). Do not make any statement without a lawyer!
Important: The right to silence does not apply to the surrender of documents (§ 97 StPO), but you are not required to provide explanations concerning those documents.

4. Prohibition on seizure of lawyer/tax advisor documents:
§ 97 StPO protects:

• Written communications between the accused and their lawyer/tax advisor
• The advisor’s working files regarding client consultations

Exception: If the advisor is themselves suspected of aiding and abetting, the protection ceases to apply!

BGH landmark judgment on assessment in criminal proceedings:
BGH, 29 January 2014 (1 StR 561/13, wistra 2014, 276):​

“An assessment of the tax base is permissible if it is established that the taxpayer has fulfilled a taxable event, but the extent of the tax base is uncertain. A reduced standard of proof in establishing the facts – unlike in tax assessment proceedings – is not permissible.”

Practical consequence:

In tax proceedings, “serious doubts” about the regularity of the accounts are sufficient for an assessment (§ 162 AO).
In criminal proceedings, however, the tax evasion must be established beyond doubt (§ 261 StPO – free evaluation of evidence based on the court’s conviction).

Legal position up to 2023:

Until 2019, it was unclear whether profits from cryptocurrencies were taxable at all:

FG Baden-Württemberg, 2 March 2018 (5 K 2508/17):
Doubts as to tax liability

FG Nuremberg, 8 April 2020 (3 V 1239/19):
Serious doubts as to tax liability

BFH, 14 February 2023 (IX R 3/22, DStR 2023, 435):
“Gains realized by a taxpayer within one year from the sale or exchange of cryptocurrencies are taxable as private disposal transactions (§ 23 EStG).”

Criminal law assessment before 2023:
Anyone who did not declare cryptocurrency gains before 2023 could argue that the legal position was objectively uncertain (BGH, 10 November 1999, 5 StR 221/99).

No disclosure obligation because:

• No established case law
• No guidance letters from the Federal Ministry of Finance (BMF)
• Contradictory case law from the fiscal courts (FG)

Recommendation:
Nevertheless, file a precautionary voluntary disclosure, especially for periods from 2019 onwards!

If the EUR 25,000 threshold is exceeded, there is no automatic exemption from punishment; instead, proceedings are discontinued subject to a surcharge payment:

§ 398a AO – Refraining from prosecution in special cases:

Surcharge:

• 10% of the evaded tax (up to EUR 100,000)
• 15% of the evaded tax (EUR 100,000 – 1 million)
• 20% of the evaded tax (over EUR 1 million)

Plus: Payment of the evaded taxes + evasion interest

Example:

• Evaded tax: EUR 150,000
• Evasion interest (3 years at 6%): EUR 27,000
• Surcharge: EUR 22,500 (15%)
• Total payment: EUR 199,500

Legal remedies:
AG Saarbrücken, 21 March 2022 (7 Gs 693/22, wistra 2022, 307):
An appeal against the payment order is admissible (§ 98 para. 2 sentence 2 StPO by analogy). Payment should be made subject to reservation!