Dannecker/Jansen

Steuerstrafrecht in Europa und den Vereinigten Staaten

1. Aufl. 2007

ISBN: 978-3-7073-1153-2

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Steuerstrafrecht in Europa und den Vereinigten Staaten (1. Auflage)

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A.	The national system of criminal tax law?
	I.	A historical survey
	II.	What resources does the criminal law on taxes, customs and refunds on exports have?
	III.	Which violations of the law on taxes are criminal offences or surcharges? What circumstances tend to aggravate or reduce punishment?
		1	Has the legal designation as criminal offence of (forms of) tax fraud (direct or indirect taxation) taken the shape of diverse offences or one central general criminal offence?
		2	Are criminal offences concerning tax fraud special offences apart from the general codification or rules of criminal law?
		3	In what way can tax authorities determine the amount of tax lost?
		4	Does the national law on taxes have a rule which means that the near fact that a criminal tax offence has been committed means that a fixed amount of tax loss is assumed?
		5	What acts are criminal offences in the field of tax fraud?
		6	What subjective constituents do these criminal offences have?
		7	What right or interest is protected by the criminal offences?
		8	Do criminal offences take the shape of skeleton law and what problems are identified as a result from that?
		9	What forms of complicity can be identified at criminal tax offences?
		10	Under what conditions can a tax consultant be liable for criminal offences?
	IV.	Which violations of the law on customs are criminal offences or surcharges? What circumstances tend to aggravate or reduce punishment?
		1	What right or interest is protected by the criminal offences?
		2	Are criminal acts on customs special offences apart from the general codification or rules of criminal law?
		3	What acts are criminal offences in the field of the law on customs?
		4	What subjective constituents do these criminal offences have?
		5	Does the national law on customs have a rule which means that the near fact that a criminal tax offence has been committed means that a fixed amount of tax loss is assumed?
		6	Do criminal offences take the shape of skeleton law and what problems are identified as a result from that?
		7	What forms of complicity can be identified at criminal customs offences?
		8	Under what conditions can a tax consultant be liable for criminal customs offences?
	V.	Which violations of the law on anti-dumping are criminal offences or surcharges? What circumstances tend to aggravate or reduce punishment?
	VI.	Which violations of the law on refunds on exports are criminal offences or surcharges? What circumstances tend to aggravate or reduce punishment?
		1	What right or interest is protected by the criminal offences?
		2	Are criminal offences concerning the law on refunds on exports special offences apart from the general codification or rules of criminal law?
		3	What acts are criminal offences in the field of the law on refunds on exports?
		4	What subjective constituents do these criminal offences have?
		5	Does the national law on refunds on exports have a rule which means that the near fact that a criminal tax offence has been committed means that a fixed amount of tax loss is assumed?
		6	Do criminal offences take the shape of skeleton law and what problems are identified as a result from that?
		7	What forms of complicity can be identified at criminal offences in the field of the law on refunds on exports?
		8	Under what conditions can a tax consultant be liable for criminal offences?
	VII.	Do special rules exist for the criminal law of taxes, customs and refunds on exports related to general issues as error, intent, omit, participation and the rule of mitigation of a sentence?
	VIII.	Which facts concerning administrative penalties or administrative offences do exist and which conditions do they have?
	IX.	Are sham business and avoidance criminally relevant? How are these practices treated by tax law?
	X.	Under what conditions can criminal sanctions be imposed upon legal persons?
	XI.	What influence does EC-law have on national tax and criminal tax legislation concerning offences, sanctions or procedural law?
	XII.	Do debates exist on the compliance of the national criminal law on taxes, customs or refunds on exports with EC-law?
	XIII.	What developments or proposals exist to change the criminal law on taxes, customs and refunds on exports?
B.	What are the main principles of national criminal tax law?
	I.	Does a tax secret exist?
		1	What is its judicial root and what importance does it have?
		2	What is its scope and what exceptions on the duty to secrecy exist, especially regarding (the beginning of) the criminal investigation?
		3	What is its relation to the principle of nemo tenetur se ipsum accusare (the right not to incriminate oneself)?
		4	Are taxpayers obliged to inform the tax authorities of earnings from criminal acts? If this obligation exists, what exceptions exist?
	II.	Does a banking secret exist?
		1	What is its judicial root and what importance does it have?
		2	What is its scope and what exceptions on the duty to secrecy exist, especially regarding (the beginning of) the criminal investigation?
	III.	What duties to cooperate with the authorities do tax payers have and what measures or sanctions can be imposed upon someone not cooperating?
		1	Are national tax facts or tax facts abroad of tax payers nationally liable treated differently?
		2	Is the duty to cooperate sharper if tax facts abroad of tax payers nationally liable are concerned?
	IV.	Can the deductibility of expenditures be made dependent on the nomination of the recipient of the benefit?
		1	Does it make any difference whether the recipient of the benefit is liable to tax in his country or abroad?
		2	Is it possible that the refusal of the nomination of the recipient of a benefit results in a damage relevant to the criminal law on taxes?
	V.	Are slush money, bribes and costs of illegal business deductible?
		1	What role do international agreements (OECD, European Council, European Union) play?
		2	What crimes result in refusal of tax deduction?
		3	What requirements apply to the assumption of criminal liability that leads to the dismissal of the possibility of tax deduction? Does the principle of in dubio pro reo apply?
	VI.	Does an access interest penalty for the payment of defrauded tax arrears exist? If so,
		1	What is the rate of interest in normal circumstances and in the case of tax fraud?
		2	What are the legal stipulations to proof a tax offence?
	VII.	Does an amended return or a penitence exist?
		1	Which violation of law does the amended return exist for?
		2	Does an effective amended return presuppose the payment of owed tax?
		3	Is an amended return still possible, when the criminal act is completed?
		4	Need the amended return be voluntarily given?
		5	What are the preconditions not to be exempted from punishment in the case of an amended return?
	VIII.	Can a third person instituting legal proceedings over the tax fraud be compensated by the tax authorities?
	IX.	How is the burden of proof assigned between the tax law and the law on criminal prosecution for tax offences?
		1	Under which conditions are estimations in the tax law legally allowed?
		2	What is the significance of such estimations in the law on criminal prosecution for tax offences?
	X.	What developments or proposals in the tax law scene exist to fight against irregularities?
C.	What legal effects do criminal acts have?
	I.	Under what conditions can pecuniary sanctions and under what conditions can imprisonment be imposed?
	II.	Which sanctions can be imposed concurrently? Is it possible to cumulate a pecuniary sanction and imprisonment?
	III.	What criteria are used to measure the sanction?
	IV.	Is the sanction related to the amount of tax missed as a result of tax fraud?
	V.	What circumstances tend to aggravate punishment?
	VI.	What circumstances tend to reduce the punishment?
	VII.	Under what conditions can a sentence to imprisonment be altered into probation?
	VIII.	What tax (administrative law) sanctions can be imposed concurrently with punitive and/or criminal sanctions and under what conditions is this possible?
D.	What possibilities to sanction does criminal law have in crossborder cases?
	I.	In what manner do tax authorities try to avoid tax evasion (the flee of taxes)?
		1	Do special rules and/or acts apply to attribute income to someone nationally liable for taxes in international tax cases?
		2	What possibilities to sanction does criminal law have to punish particularly bank employees and consultants of investment companies helping to transfer money abroad?
		3	Does a tax on interest payment exist?
		4	To what extent does an international exchange of information exist?
		5	How are firms, which are just an accommodation address, and transactions with companies in low tax countries dealt with?
	II.	Are there any tax features concerning criminal acts at the expense of the EC?
		1	What are the criminal sanctions for the evasion of turnover taxes at the expense of the EC-states and for the evasion of harmonised taxes?
		2	How is the economic subsidy fraud punished?
	III.	What possibilities exist to protect marketing regulations levies of the EC by criminal offences?
	IV.	Are criminal sanctions imposed by other states – inside and outside the EC – taken into account by the national sanctions? Does the principle of “ne bis in idem” have any validity?
E.	How are competences and proceedings in criminal tax law regulated?
	I.	Which public authorities are responsible for the investigation of criminal tax offences?
		1	In case the responsible authority is not exclusively the public prosecution, have then the code of criminal procedure or other rules of procedure to be applied?
		2	How is the conflict of the responsible public authority between tax secrecy and the principle of mandatory prosecution to be solved?
	II.	What is the relation between the prosecution authorities and the revenue authorities?
		1	Is there any obligation between the public authorities to exchange information?
		2	What are the legal consequences if a public authority or an officeholder does not fulfil the duty to exchange information?
	III.	How is the cooperation between national authorities in criminal and administrative matters on the one hand and the international cooperation between the competent authorities and EC-authorities on the other hand regulated?
	IV.	Are criminal authorities bound by the determination of (tax) facts by tax authorities or not?
	V.	Which courts are competent in criminal tax law matters?
	VI.	What principles of a criminal nature (especially: the right to be heard, the right of access to documents, nemo tenetur se ipsum accusare, the exclusion of evidence, legal privilege, ne bis in idem) apply in these procedures and what are the regulations?
	VII.	Under which conditions can a proceeding of criminal prosecution for tax offences be abandoned?
	VIII.	Do simplified procedures exist?
F.	The actual importance of the criminal tax law (statistics)
	Bibliography
	Important monographies and commentaries
	Important articles

A. The national system of criminal tax law?

I. A historical survey

In respect of criminal tax law, not including criminal law on customs, we may summarise the evolution of the national system dividing it into two phases: the first one previous to Decree-Law n. 20-A/90 and the second one succeeding it.

Previously to the mentioned Decree-Law, there were some offences spread out over different tax codes and complementary legislation of dubious characterisation. In some aspects this legislation approximated Criminal Law but in other ones it set apart from it. As a consequence, literature discussed if they were crimes or regulatory offences (Übertretungen).

In the end of the eighties there was a radical tax law reform which has culminated in the approval of new substantive and procedural tax law codes and in the definition of tax crimes and administrative offences (Ordnungswidrigkeiten) in...

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Steuerstrafrecht in Europa und den Vereinigten Staaten

A. The national system of criminal tax law?

I. A historical survey

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