Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
II. Revenue authority procedure in the case of tax crimes
Section 399
Revenue authority’s rights and obligations
(1) Where the revenue authority conducts the investigation independently pursuant to section 386(2), the revenue authority shall have the same rights and obligations as the public prosecutor’s office has in an investigation.
(2) Where a revenue authority has been given jurisdiction pursuant to section 387(2) for an area covered by several revenue authorities, the right and obligation of these revenue authorities to investigate the facts where a tax crime is suspected and to issue all non-deferrable orders to avoid obfuscation of the case shall remain unaffected. They may order confiscation, emergency sales, searches, inspections and other measures in accordance with the regulations of the Code of Criminal Procedure applying to the public prosecution office’s investigators.
Section 400
Application for the order of summary punishment
Where the results of the investigations provide sufficient grounds to bring a public charge, the revenue authority shall apply to the judge to issue an order of summary punishment where the criminal matter appears suited to treatment in summary proceedings without trial; where this is not so, the revenue authority shall give the files to the public prosecutor’s office.
Section 401
Application to order incidental consequences in autonomous proceedings
Revenue authorities may file an application for the authorisation to order sequestration autonomously or to set a fine against a legal person or association autonomously (sections 435 and 444(3) of the Code of Criminal Procedure).
III. Role of the revenue authority in procedures carried out by the public prosecutor
Section 402
General rights and obligations of the revenue authority
(1) Where the public prosecutor’s office conducts the investigation, the revenue authority which would otherwise have had jurisdiction shall have the same rights and obligations as the police authorities under the Code of Criminal Procedure as well as the powers pursuant to section 399(2), second sentence.
(2) Where a revenue authority has been transferred pursuant to section 387(2) jurisdiction for an area covered by several revenue authorities, subsection (1) above shall apply for each of these revenue authorities.
Section 403
Participation of the revenue authority
(1) Where the public prosecutor’s office or the police authorities conduct investigations concerning tax crimes, the revenue authority which would otherwise have had jurisdiction shall be entitled to participate. The revenue authority should be informed in good time of the place and time of the investigative actions. The representative of the revenue authority shall be permitted to pose questions to the accused persons, witnesses and experts.
(2) Subsection (1) above shall apply mutatis mutandis to court hearings at which the public prosecutor’s officer is also permitted to attend.
(3) The revenue authority which would otherwise have had jurisdiction shall be informed of the charge and the application for the order of summary punishment.
(4) Where the public prosecutor’s office considers staying the proceedings, it shall consult the revenue authority that would otherwise have had jurisdiction.
IV. Tax and customs investigation
Section 404
Tax and customs investigation
The Customs Investigation Offices and the agencies of Land revenue authorities which are responsible for tax investigation as well as their officials shall, in criminal proceedings for tax crimes, have the same rights and obligations as the police authorities and officers according to the regulations of the Code of Criminal Procedure. The agencies described in the first sentence above shall have the powers pursuant to section 399(2), second sentence, as well as the power to examine the papers of those affected by the search (section 110(1) of the Code of Criminal Procedure); their officers shall be investigators of the public prosecutor’s office.
V. Reimbursement for witnesses and experts
Section 405
Reimbursement for witnesses and experts
Where the revenue authority consults witnesses and experts for the purposes of evidence, these shall be compensated or remunerated in corresponding application of the Judicial Remuneration and Compensation Act. This shall also apply in the cases set out in section 404.
3rd Subchapter
Judicial proceedings
Section 406
Revenue authorities’ role in summary proceedings and autonomous proceedings
(1) Where the revenue authority has applied for an order of summary punishment to be issued, the revenue authority shall have the rights and obligations of the public prosecutor’s office as long as no date for a trial is appointed pursuant to section 408(3), second sentence, of the Code of Criminal Procedure, and no objection has been lodged against the order of summary punishment.
(2) In cases where revenue authorities have filed an application for the authorisation to order sequestration autonomously or to set a fine against a legal person or association autonomously (section 401), the revenue authorities shall exercise the rights and obligations of the public prosecutor’s office as long as no application for oral hearings has been filed and no oral hearings have been ordered by a court.
Section 407
Participation of the revenue authority in other cases
(1) The court shall allow the revenue authority opportunity to present aspects which, from its perspective, are of relevance to the decision. This shall also apply where the court considers staying the proceedings. The revenue authority shall be informed of the date of the trial and the date of the hearing by a commissioned or requested judge (sections 223 and 233 of the Code of Criminal Procedure). Upon request, the revenue authority’s representative shall be allowed to speak during the trial. The representative shall be allowed to pose questions to the defendants, witnesses and experts.
(2) The revenue authority shall be informed of the ruling and other decisions concluding the proceedings.
4th Subchapter
Costs of the proceedings
Section 408
Costs of the proceedings
In criminal proceedings for a tax crime, necessary expenses of a participant within the meaning of section 464a(2) number 2 of the Code of Criminal Procedure shall include the legal fees and expenses for a tax consultant, tax representative, auditor or certified accountant. Where there are no legal provisions on fees and expenses, they may be reimbursed up to the amount of the legal fees and expenses of a lawyer.
Fourth Chapter
Administrative fine proceedings
Section 409
Competent administrative authority
In the case of tax-related administrative offences, the competent administrative authority within the meaning of section 36(1) number 1 of the Administrative Offences Act shall be the revenue authority with subject-matter jurisdiction pursuant to section 387(1). Section 387(2) shall apply accordingly.
Section 410
Supplementary provisions on administrative fine proceedings
(1) Apart from the procedural provisions, the provisions of the Administrative Offences Act shall apply accordingly to administrative fine proceedings:
1. sections 388 to 390 on the jurisdiction of the revenue authority,
2. section 391 on the jurisdiction of the court,
3. section 392 on the defence,
4. section 393 on the relationship between criminal proceedings and the taxation procedure,
5. section 396 on the suspension of proceedings,
6. section 397 on the initiation of criminal proceedings,
7. section 399(2) on the rights and obligations of the revenue authority,
8. sections 402, 403(1), (3) and (4) on the role of the revenue authority in procedures carried out by the public prosecutor,
9. section 404, first sentence and the first half-sentence of the second sentence on tax and customs investigation,
10. section 405 on compensation for witnesses and experts,
11. section 407 on the participation of the revenue authorities and
12. section 408 on the costs of proceedings.
(2) Where the revenue authority prosecutes a tax crime connected with a tax-related administrative offence (section 42(1), second sentence, of the Administrative Offences Act), the revenue authority may, in the cases of section 400, apply to extend the order of summary punishment to the tax-related administrative offence.
Section 411
Administrative fine proceedings against lawyers, tax consultants, tax representatives, auditors or certified accountants
Before an administrative fine notice is issued against a lawyer, tax consultant, tax representative, auditor or certified accountant for a tax-related administrative offence which he committed in the exercise of his profession in advising on tax matters, the revenue authority shall allow the competent professional organisation the opportunity to present aspects which, from its perspective, are of relevance to the decision.
Section 412
Service, enforcement, costs
(1) Notwithstanding section 51(1), first sentence, of the Administrative Offences Act, the provisions of the Administrative Service of Documents Act shall also apply to the method of service of documents even where a Land revenue authority has issued the notice. Section 51(1), second sentence, and section 51(2) to (5) of the Administrative Offences Act shall remain unaffected.
(2) Notwithstanding section 90(1) and (4), section 108(2) of the Administrative Offences Act, the provisions of the Sixth Part of this Code shall apply to the enforcement of revenue authority notices in administrative fine proceedings. The remaining provisions of the ninth chapter of the Second Part of the Administrative Offences Act shall remain unaffected.
(3) Section 107(4) of the Administrative Offences Act shall also apply to the costs of administrative fine proceedings even where a Land revenue authority has issued the administrative fine notice; section 227 and section 261 of this Code shall apply in place of section 19 of the Administrative Costs Act, in the version in force until 14 August 2013.
Ninth Part
Final provisions
Section 413
Restriction of basic rights
The basic rights to physical integrity and freedom of the person (Article 2(2) of the Basic Law), the privacy of correspondence, posts and telecommunications (Article 10 of the Basic Law) and the inviolability of the home (Article 13 of the Basic Law) shall be restricted in accordance with this Code.
Section 414
(obsolete)
Section 415
Entry into force
(1) This Code shall enter into force on 1 January 1977 unless the following subsections stipulate otherwise.
(2) Section 19(5), section 117(5), section 134(3), section 139(2), section 150(6), section 156(1), section 178(3), section 212, section 382(4), section 387(2) and section 391(2) shall enter into force on the date after its promulgation.
(3) Sections 52 and 55 shall apply for the first time from 1 January 1984.
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