Penalties for tax evasion „small extent“ – it can’t be more sweeping

25.10.2018

Deutsche Version
We are often asked by our clients how much penalty they should expect for the accusation of tax evasion.

For us, this is an absolutely understandable question, since everyone who is confronted with a criminal charge not only wants to know what the subsequent payment of the tax will cost him, including interest on evasion, but also whether he must expect a fine or even imprisonment.

Therefore, in our consulting practice, we use the partially published penalty tables of the different financial and/or court districts for our advice and draw on the experience of the cases we represent. Some even summarise these experiences into their own „penalty table“.

The difference between such an „own penalty table“ of the cases accompanied by the defence counsel himself and the penalty tables of the authorities and courts is that one does not only refer to the reduced tax but also to the particularities of the individual case to be decided.

This individualises the punishment pronounced in the individual case. The legislator has not provided for tables of penalties for tax offences. It specifies a range of penalties, e.g. from a fine to imprisonment for up to five years, and also stipulates that the penalty corresponding to the personal guilt must be determined by weighing up all individual criteria for mitigating and aggravating the penalty (§§ 369 Paragraph 2 AO in conjunction with 46 Paragraph 2 StGB).

In administrative practice, one frequently tries to justify the application of penalty tables by arguing that one wants to avoid a different level of punishment being imposed for comparable cases. In principle, this argument cannot be contradicted as long as the penalty tables are then understood only as the first benchmark for a possible sanction and the individual punishment is then determined in the sentencing according to the individual characteristics of guilt.

The article „Where Germany’s strictest judges are“ by Jean-Pierre Ziegler and Marcel Pauly, published on 20.10.2018 on Spiegel Online, clearly shows that authorities and courts in Germany have also established regional differences in the level of punishment for which there is no basis, at least in law.

Insofar as the individual circumstances of the offence and the offender are not or not sufficiently taken into account in the sentencing due to the unreflected application of penalty tables, it is the task of the defence counsel to demand the application of the law for the person concerned.