Jörg Reimer
Steuerberatungsgesellschaft mbH
Heißbergstrasse 20
52066 Aachen

Telefon: +49 241 16057-0
Telefax: +49 241 16057-50

E-Mail: info@joergreimer.de

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Technical and vocational skills » Special Advice! » law regarding fiscal offences – voluntary disclosure

Trust in our independence and loyalty

Staged

voluntary disclosure

because of the acquisition of so-called "tax evaders CDs"


I. The Problem

Only about two years after the high-profile case Zumwinkel the North Rhine - Westphalia Ministry of Finance is offered repeatedly CDs with financial data of German taxpayers. This time illegal information from Switzerland are concerned, that will substantially affect the UBS bank and the private bank Julius Baer and its customers.

Fearing discovery of offence, in recent days, many tax advisors with their clients, which have a bank account in Switzerland approached us. Either they paid non-taxed amounts to their account and / or haven’t declared the capital gains to the German tax authorities. So they ask us to examine the possibility of voluntary disclosure.

In these cases there is one dilemma: on the one hand there is a considerable time pressure in terms of the risk of imminent discovery, on the other hand, however, the required information from the bank (so-called material delivery, f. e. account records of the last 5 years with all interest amounts) for the delivery of an effective voluntary disclosure can not be obtained in time. In the course of this reoccurring data CDs the Private Bank Julius Baer and UBS contacted their customers by mail and phone and advised them to let their tax situation be checked by local experts.


Practice Note:
Just by press releases on the purchase of these CDs and by the purchase itself, the offence is not discovered and therefore no blocking effect on the voluntary disclosure has entered. For this it requires further investigation by the tax authorities in specific cases, such as a comparison with your home tax authorities with regard to the fact that the relevant incomes aren’t mentioned in your tax declaration.


II. " Staged voluntary disclosure" as the best way out of the dilemma

As a way out of the mentioned dilemma it has to be considered to issue a so-called Staged voluntary disclosure. In the first stage the offence is revealed in front of the fiscal authorities and the amount to be paid is estimated, this will be corrected in the second stage if necessary.

This procedure for obtaining the exemption from punishment, the Bundesgerichtshof confirmed already in its order dated 16.06.2005 (5 StR 118/05).


Also by the tax authorities such a stepped voluntary disclosure had been accepted. There could be doubts, however, because of the changed wording of the internal administrative order of the tax authorities (No. 120 AStBV (tax) 2008). If the initial information is insufficient the local authorities for punishment and administrative fine can carry out further inquiries. 

According to our information, the financial authorities have agreed that despite the amended wording of the administrative rule, a stepped self-exculpatory display should remain possible. Nevertheless, the residual risk and the risk of being detected has to be weight together with the client.


Practice Note:
In the absence of sufficient data it may be recommend, on safety reasons, before making the voluntary disclosure to contact the local tax office (penalties and fines office) to approach the content and time without naming the client.


Consider:
If a stepped voluntary disclosure to the Tax Office is released, it is highly recommended to break down the defrauded amounts by type of tax and tax period separately and despite the lack of documentation to provide them as specific as possible. The estimate should not be too low (estimated to the disadvantage of the client), because only in their scope exemption from punishment may occur. Later, the values upon presentation of documents - if necessary in mode of objection – can be revised downwards. Upwards a non-criminal correction can generally be done only up to about 10% of the stated values.

Regardless of the penalty spared the tax burden is valid and there will be evasion interest payable on the evaded amount.

Here it is essential to criminal tax consideration that sufficient liquidity to complete tax payment within the time limit set by the tax office is available, otherwise the exculpatory effect of voluntary disclosure does not occur.

 



Bei Steuerstrafverfahren ist zwischen dem Besteuerungsverfahren und dem Strafver- fahren zu unterscheiden. Insoweit ist auf die strafrechtliche Verjährung zu achten, die grundsätzlich fünf Jahre (seit 25.12.2008 für einige besonders schwere Fälle 10 Jahre) ab dem Zeitpunkt der Beendigung der Tat (bei Veranlagungssteuern regelmäßig Bekanntgabe des Steuerbescheides) beträgt. Nur für diesen Zeitraum ist die Abgabe einer Selbstanzeige sinnvoll. Insoweit ist sorgfältig auf die Überprüfung der Strafverfolgungsverjährung zu achten, da sämtliche nicht verjährten Jahre angezeigt werden müssen, damit die strafbefreiende Wirkung der Selbstanzeige eintritt.

Dennoch muss der Mandant damit rechnen, dass er zur Abgabe weitere Angaben aufgefordert wird und Nachzahlungsbeträge für die vorangegangenen fünf Jahr festgesetzt werden, da die Festsetzungsverjährung im Besteuerungsverfahren bei Steuerstraftaten zehn Jahre beträgt.


III.CONCLUSION

Due to recent events of the planned purchase of "tax evaders CDs" by the tax authorities in particular customers of the bank Credit Suisse, UBS, Julius Baer and the Liechtenstein Fürstenbank LGT should be a think about the delivery of a possibly staged self-display, since the discovery of offence might be imminent. 

But also other taxpayers, which haven’t declared their income from investments abroad, should consider the voluntary disclosure seriously as a "golden bridge" to impunity. So they get rid of the uneasy feeling of always being discovered and to assume the legalization of funds held abroad. For it is certain that the cases of data theft in regard to the willingness of the state to purchase this data will accumulate. In addition, it is expected that the information exchange between Germany and the non-EU will be countries more and more extended because of the increasing political pressure and the control mechanisms will be further optimized.

If the decision to submit a voluntary disclosure is taken, it should be carefully prepared, as in connection with their submission numerous pitfalls are observed. We willingly help you and your clients in the context of submitting voluntary disclosure.

Kontakt:

Jörg Reimer
Steuerberatungs GmbH
Heißbergstrasse 20
52066 Aachen

Telefon: +49 241 16057-0
Telefax: +49 241 16057-50

info@joergreimer.de
www.joergreimer.de