Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
Eighth Part
Provisions relating to crimes and administrative fines, criminal and administrative fine proceedings
First Chapter
Provisions on crimes
Section 369
Tax crimes
(1) The following shall be tax crimes (customs crimes):
1. acts which are punishable under the tax laws,
2. the illegal import, export or transit of goods,
3. the forging of revenue stamps or acts preparatory thereto, insofar as the act relates to tax stamps,
4. aiding and abetting a person who has committed an act under numbers 1 to 3 above.
(2) Tax crimes shall be subject to the general provisions of criminal law unless otherwise provided for by the tax laws’ provisions on crime.
Section 370
Tax evasion
(1) A penalty of up to five years’ imprisonment or a monetary fine shall be imposed on any person who
1. furnishes the revenue authorities or other authorities with incorrect or incomplete particulars concerning matters that are relevant for tax purposes,
2. fails to inform the revenue authorities of facts that are relevant for tax purposes when obliged to do so, or
3. fails to use revenue stamps or revenue stamping machines when obliged to do so
and as a result understates taxes or derives unwarranted tax advantages for himself or for another person.
(2) Attempted perpetration shall be punishable.
(3) In particularly serious cases, a penalty of between six months and ten years’ imprisonment shall be imposed. In general, a particularly serious case is one in which the perpetrator
1. deliberately understates taxes on a large scale or derives unwarranted tax advantages,
2. abuses his authority or position as a public official or European public official (section 11(1) number 2a of the Criminal Code),
3. solicits the assistance of a public official or European public official (section 11(1) number 2a of the Criminal Code) who abuses his authority or position,
4. repeatedly understates taxes or derives unwarranted tax advantages by using falsified or forged documents, or
5. as a member of a group formed for the purpose of repeatedly committing acts pursuant to subsection (1) above, understates value-added taxes or excise duties or derives unwarranted VAT or excise duty advantages.
6. uses a third-country company (as defined in section 138(3)) over which he can directly or indirectly exercise controlling or decisive influence alone or jointly with related parties (as defined in section 1(2) of the External Tax Relations Act), where such use is for the purpose of concealing facts that are relevant for tax purposes and in this way understating his taxes or obtaining unwarranted tax benefits on an ongoing basis.
(4) Taxes shall be deemed to have been understated in particular where they are not assessed at all, in full or in time; this shall also apply even where the tax has been assessed provisionally or assessed subject to review or where a self-assessed tax return is deemed to be equal to a tax assessment subject to review. Tax advantages shall also include tax rebates; unwarranted tax advantages shall be deemed derived to the extent that these are wrongfully granted or retained. The conditions of the first and second sentences above shall also be fulfilled where the tax to which the act relates could have been reduced for other reasons or the tax advantage could have been claimed for other reasons.
(5) The act may also be committed in relation to goods whose importation, exportation or transit is banned.
(6) Subsections (1) to (5) above shall apply even where the act relates to import or export duties which are administered by another Member State of the European Communities or to which a Member State of the European Free Trade Association or a country associated therewith is entitled. The same shall apply where the act relates to value-added taxes or harmonised excise duties on goods designated in Article 3(1) of Council Directive 92/12/EEC of 25 February 1992 (OJ L 76, p. 1) which are administered by another Member State of the European Communities.
(7) Irrespective of the lex loci delicti, the provisions of subsections (1) to (6) above shall also apply to acts committed outside the territory of application of this Code.
Section 370a
(rescinded)
Section 371
Voluntary disclosure of tax evasion
(1) Whoever, in relation to all tax crimes for a type of tax, fully corrects the incorrect particulars submitted to the revenue authority, supplements the incomplete particulars submitted to the revenue authority or furnishes the revenue authority with the previously omitted particulars shall not be punished pursuant to section 370 on account of these tax crimes. The information provided must cover all tax crimes for one type of tax that have not become time-barred, and at least all tax crimes for one type of tax within the last 10 calendar years.
(2) Exemption from punishment shall not apply if,
1. prior to the correction, supplementation or subsequent furnishing of particulars in connection with voluntarily disclosed tax crimes that have not become time-barred,
a) the person involved in the act, his representative, the beneficiary as referred to in section 370(1), or the beneficiary’s representative has been notified of an audit order in accordance with section 196, limited to the material and temporal scope of the ordered external audit, or
b) the person involved in the act or his representative has been notified of the initiation of criminal proceedings or administrative fine proceedings, or
c) a public official from the revenue authority has already appeared for the purpose of carrying out a tax audit, limited to the material and temporal scope of the external audit, or
d) a public official has already appeared for the purpose of investigating a tax crime or tax-related administrative offence, or
e) a public official from the revenue authority has already appeared and provided proof of identity for the purpose of conducting a VAT inspection in accordance with section 27b of the VAT Act, a wages tax inspection in accordance with section 42g of the Income Tax Act or an inspection in accordance with other tax law provisions, or
2. one of the tax crimes had already been fully or partially detected at the time of the correction, supplementation or subsequent furnishing of particulars and the perpetrator knew this or should have expected this upon due consideration of the facts of the case,
3. the tax understated pursuant to section 370(1) or the unwarranted tax advantage derived by someone for himself or for another person exceeds the amount of 25,000 euros per act, or
4. a particularly serious case exists as specified in section 370(3), second sentence, numbers 2 to 6.
In the event that exemption from punishment is ruled out in accordance with the first sentence, numbers 1a) and 1c) above, this shall not preclude the submission of a correction in accordance with subsection (1) above in connection with tax crimes for one type of tax that do not fall under the scope of the first sentence, numbers 1a) and 1c) above.
(2a) Insofar as tax evasion has been committed by breaching the obligation to submit a complete and accurate provisional VAT return or wages tax return on time, exemption from punishment shall apply, notwithstanding subsection (1) and subsection (2), first sentence, number 3 above, if the perpetrator corrects the incorrect particulars submitted to the competent revenue authority, supplements the incomplete particulars submitted to the competent revenue authority, or furnishes the competent revenue authority with the previously omitted particulars. Subsection (2), first sentence, number 2 above shall not apply if the act was detected upon the discovery that a provisional VAT return or wages tax return was corrected or submitted late. The first and second sentences above shall not apply to tax returns relating to the calendar year. In order for a voluntary disclosure relating to a tax return for a particular calendar year to be deemed complete, it shall not be compulsory to correct, supplement or subsequently furnish particulars for provisional returns concerning time periods following that calendar year.
(3) Where tax has already been understated or tax advantages have already been derived, exemption from punishment shall be granted to the person involved in the act only if he pays, within the reasonable period of time allowed to him, the taxes which were evaded to his benefit through the perpetration of the act, the interest payable on the evaded taxes in accordance with section 235, and the interest payable under section 233a insofar as such interest is charged on the interest payable on the evaded taxes in accordance with section 235(4). In cases covered by the first sentence of subsection (2a) above, the first sentence above shall apply with the proviso that the timely payment of interest in accordance with section 233a or section 235 is immaterial.
(4) Where the notification provided for in section 153 is punctually and duly filed, a third party who failed to make the statements referred to in section 153 or who made such statements incorrectly or incompletely shall not be prosecuted unless he or his representative was previously notified of the initiation of criminal or administrative fine proceedings resulting from the act. Subsection (3) above shall apply accordingly where the third party has acted for his own benefit.
Section 372
Illegal import, export, or transit of goods
(1) Whoever imports, exports or transports goods in violation of a prohibition shall be deemed to have illegally imported, exported or transported goods.
(2) The perpetrator shall be punished pursuant to section 370(1) and (2) where the act is not subject to punishment or a monetary fine as a violation of import, export, or transit prohibitions pursuant to other provisions.
Section 373
Professional, violent or organised smuggling
(1) Whoever evades import or export duties on a commercial basis or who illegally imports, exports or transports goods on a commercial basis in contravention of monopoly regulations shall be subject to imprisonment for a period of six months to 10 years. In less serious cases, the penalty shall be imprisonment for up to five years or a monetary fine.
(2) Punishment shall also be imposed on any person who
1. evades import or export duties or illegally imports, exports or transports goods, and in committing these acts he or another participant carries a firearm,
2. evades import or export duties or illegally imports, exports or transports goods, and in committing these acts he or another participant carries with him a weapon or some other tool or means to prevent or overcome the resistance of another person by violence or by the threat of violence, or
3. as a member of a group formed for the purpose of repeatedly evading import or export duties or of illegally importing, exporting or transporting goods, commits such an act.
(3) Attempted perpetration shall be punishable.
(4) Section 370(6), first sentence, and (7) shall apply accordingly.
Section 374
Receiving, holding or selling goods obtained by tax evasion
(1) Imprisonment for up to five years or a monetary fine shall be imposed upon any person who purchases or otherwise acquires for himself or for a third party, sells or helps to sell products or goods in connection with which (a) excise duties or import and export duties pursuant to Article 5 numbers 20 and 21 of the Union Customs Code have been evaded or (b) the illegal import, export or transit of goods pursuant to section 372(2) and section 373 has been committed, with the aim of enriching himself or a third party.
(2) Where the perpetrator acts commercially or as a member of a group formed for the purpose of repeatedly committing crimes pursuant to subsection (1) above, a penalty of between six months and ten year’s imprisonment shall be imposed. In less serious cases, the penalty shall be imprisonment for up to five years or a monetary fine.
(3) Attempted perpetration shall be punishable.
(4) Section 370(6) and (7) shall apply accordingly.
Section 375
Incidental consequences
(1) In addition to at least one year’s imprisonment for
1. tax evasion,
2. illegally importing, exporting or transporting goods pursuant to section 372(2), section 373,
3. receiving, holding or selling goods obtained by tax evasion, or
4. aiding and abetting a person who has committed an act under numbers 1 to 3 above,
the court may disqualify someone from holding public office and acquiring rights from public elections (section 45(2) of the Criminal Code).
(2) In cases where tax has been evaded, goods have been illegally imported, exported or transported pursuant to section 372(2) and section 373, or goods acquired by tax evasion have been received, held or sold,
1. the products, goods and other items in connection with which (a) excise duties or import and export duties pursuant to Article 5 numbers 20 and 21 of the Union Customs Code have been evaded or (b) the illegal import, export or transport of goods or the receiving, holding or selling of goods obtained by tax evasion has been committed, and
2. the means of transport used in the act,
may be confiscated. Section 74a of the Criminal Code shall apply.
Section 376
Limitation period for prosecution
(1) In particularly serious cases of tax evasion as specified in section 370(3), second sentence, numbers 1 to 6, the limitation period is 10 years.
(2) The limitation period for the prosecution of a tax crime shall also be interrupted where the accused is notified of the initiation of administrative fine proceedings or this notification is ordered.
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