Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
Second Chapter
Provisions on administrative fines
Section 377
Tax-related administrative offences
(1) Tax-related administrative offences (customs-related administrative offences) are offences that may be punished by monetary fine in accordance with this Code or other tax legislation.
(2) The provisions of the first part of the Administrative Offences Act shall apply to tax-related administrative offences insofar as the administrative fine provisions in this Code or in other tax legislation do not specify otherwise.
Section 378
Reckless understatement of tax
(1) Whoever as a taxpayer or a person looking after the affairs of a taxpayer recklessly commits one of the acts described in section 370(1) shall be deemed to have committed an administrative offence. Section 370(4) to (7) shall apply accordingly.
(2) The administrative offence may be punished with a monetary fine of up to 50,000 euros.
(3) A monetary fine shall not be set insofar as the perpetrator 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 before he or his representative has been notified of the initiation of criminal or administrative fine proceedings resulting from the act. Where tax has already been understated or tax advantages have already been derived, a monetary fine shall not be set if the perpetrator pays, within the reasonable period of time allowed to him, the taxes that were understated to his benefit on the basis of this act. Section 371(4) shall apply accordingly.
Section 379
General minor tax fraud
(1) An administrative offence shall be deemed to have been committed by any person who intentionally or recklessly
1. issues documents that are factually incorrect,
2. places documents into circulation for a fee,
3. fails to record or to have recorded, records or has recorded in a factually incorrect manner, fails to enter or have entered in the accounts, or enters or has entered in the accounts in a factually incorrect manner, transactions or business activity that according to the law must be entered in the accounts or otherwise recorded,
4. fails to use a system as prescribed in the first sentence of section 146(1) or uses such a system incorrectly,
5. fails to protect a system as prescribed in the second sentence of section 146(1) or protects such a system incorrectly or
6. advertises or markets a system or software for commercial purposes in violation of the fifth sentence of section 146a(1)
and in so doing enables taxes to be understated or unwarranted tax advantages to be derived. The first sentence, number 1 above shall also apply where import or export duties that are administered by another Member State of the European Union or to which a State, which on the basis of an association agreement or preferential agreement grants preferential treatment to goods deriving from the European Union, is entitled can be understated; section 370(7) shall apply accordingly. The same shall apply where the act relates to valued-added taxes that are administered by another Member State of the European Union.
(2) An administrative offence shall be deemed to be committed by any person who intentionally or recklessly
1. fails to comply at all, in full or on time with the notification requirements under the first sentence of section 138(2),
1a. fails to prepare a record at all, correctly, or completely, in violation of section 144(1) or (2), first sentence, in conjunction with section 144(5),
1b. contravenes an ordinance pursuant to section 177c(1) or an enforceable order based on such an ordinance, insofar as the ordinance refers to this provision on fines for a specified offence,
1c. fails to submit a country-by-country report fully or on time (section 138a(6)) in violation of section 138a(1), (3) or (4) or fails to provide notification fully or on time (section 138a(6)) in violation of the third sentence of section 138a(4).
1d. fails to comply at all, in full or on time with the notification requirements under section 138b(1) to (3),
2. breaches the obligations under section 154(1) to (2c).
(3) An administrative offence shall be deemed to be committed by any person who intentionally or negligently contravenes a condition pursuant to section 120(2) number 4 to which an administrative act has been attached for the purposes of special fiscal supervision (sections 209 to 217).
(4) In cases where the relevant actions cannot be punished pursuant to section 378, administrative offences under subsection (1), first sentence, numbers 1 and 2, subsection (2) numbers 1 to 1b and number 2 and subsection (3) may be punished with a fine of up to 5,000 euros, administrative offences under subsection 2 number 1c may be punished with a fine of up to 10,000 euros, and administrative offences under subsection 1, first sentence, numbers 3 to 6 may be punished with a fine of up to 25,000 euros.
Section 380
Endangerment of withholding taxes
(1) An administrative offence shall be deemed to be committed by any person who intentionally or recklessly fails to comply at all, in full or in time with his obligation to withhold or remit to revenue authorities tax amounts which are due.
(2) The administrative offence may be punished with a monetary fine of up to 25,000 euros where the action cannot be punished pursuant to section 378.
Section 381
Endangerment of excise tax
(1) An administrative offence shall be deemed to be committed by any person who intentionally or recklessly contravenes the provisions of excise laws or the ordinances issued in connection therewith
1. on the obligations regarding the preparation, safeguarding or subsequent auditing of taxation,
2. on the packaging and labelling of products subject to excise duty or goods containing such products, or on the restrictions on trade or use for such products or goods, or
3. on the use of untaxed goods in free ports
insofar as excise laws or the ordinances issued in connection therewith refer to this provision on fines for a specified offence.
(2) The administrative offence may be punished with a monetary fine of up to 5,000 euros where the action cannot be punished pursuant to section 378.
Section 382
Endangerment of import and export duties
(1) An administrative offence shall be deemed to be committed by any person who, as the liable party or the person looking after the affairs of a liable party, intentionally or negligently contravenes customs regulations, ordinances issued in connection therewith or Regulations of the Council of the European Union or the European Commission which apply
1. to the recording by customs of the movement of goods across the frontiers of the customs territory of the European Communities as well as across the free zone borders,
2. to the placement of goods under a customs procedure and the implementation thereof or to obtaining another customs-approved treatment or use of goods,
3. to the free zones, border areas and territories subject to border surveillance
insofar as such customs regulations or ordinances issued in connection therewith or issued on the basis of subsection (4) below refer to this provision on fines for a specified offence.
(2) Subsection (1) above shall also apply where the customs regulations and the ordinances issued in connection therewith apply mutatis mutandis to excise duties.
(3) The administrative offence may be punished with a monetary fine of up to 5,000 euros where the action cannot be punished pursuant to section 378.
(4) The Federal Ministry of Finance may issue ordinances specifying the elements of offences contained in Regulations of the Council of the European Union or the European Commission which may be punished pursuant to subsections (1) to (3) above as administrative offences subject to a monetary fine insofar as this is necessary for the implementation of these laws and insofar as such elements concern obligations regarding the presentation, storage or treatment of goods, the submission of declarations or notifications, the keeping of written records, or the completion or submission of customs documents or the inclusion of notes in such documents.
Section 383
Unauthorised acquisition of claims to a tax refund and rebate
(1) An administrative offence shall be deemed to be committed by any person who, in breach of section 46(4), first sentence, acquires claims to refunds or rebates.
(2) The administrative offence may be punished with a monetary fine of up to 50,000 euros.
Section 383a
(rescinded)
Section 383b
Breach of obligations in transmitting data contained in authorisations granting powers of representation
(1) An administrative offence shall be deemed to be committed by any person who intentionally or recklessly
1. transmits to the revenue authorities authorisations granting powers of representation that contain incorrect data, in violation of the third sentence of section 80a(1) or
2. fails, in violation of the fourth sentence of section 80a(1), to notify the revenue authorities without delay if a principal revokes or modifies an authorisation transmitted in accordance with section 80a(1).
(2) The administrative offence may be punished with a fine of up to 10,000 euros.
Section 384
Limitation period for prosecution
The period of limitation for the prosecution of tax-related administrative offences pursuant to sections 378 to 380 shall become time-barred after five years.
Section 384a
Infringements under Article 83(4) to (6) of Regulation (EU) 2016/679
(1) The provisions in this Code and in other tax legislation that pertain to tax-related administrative offences shall not apply to the extent that Article 83 of Regulation (EU) 2016/679 simultaneously applies, directly or in accordance with section 2a(5), to an offence.
(2) Section 41 of the Federal Data Protection Act shall apply accordingly to infringements under Article 83(4) to (6) of Regulation (EU) 2016/679 that fall within the scope of this Code.
(3) A notification as per Article 33 of Regulation (EU) 2016/679 or a communication as per Article 34(1) of Regulation (EU) 2016/679 may be used in criminal proceedings or administrative fine proceedings against a reportable person or one of that person’s relatives as specified in section 52(1) of the Code of Criminal Procedure only with the consent of the reportable person.
(4) Within the scope of this Code, no administrative fines as per Article 83(4) to (6) of Regulation (EU) 2016/679 may be imposed against revenue authorities and other public entities.
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