Tax evasion: extension of the statute of limitations for prosecution to 15 years

With the JStG 2020 passed by the Bundestag yesterday, the criminal statute of limitations for particularly serious tax evasion will be increased from 10 years to 15 years.

Background

As was the case with the extension of the statute of limitations for prosecution of particularly serious tax evasion from 5 to 10 years in 2008 in connection with the purchase of data carriers from Liechtenstein, the legislator again decided on a general extension of the statute of limitations on the occasion of the processing of specific cases of tax evasion in connection with Cum-Ex cases. The legislator justifies the extension of the statute of limitations with the difficulties of clarifying highly complex and often international cases of particularly serious evasion. In this respect, the current ten-year statute of limitations already deviates from general criminal law, which would provide for a statute of limitations of 5 years based on the level of punishment for tax evasion.

This is already the second tightening of the criminal statute of limitations this year. In the summer of 2020, the second Corona Tax Assistance Act already extended the absolute statute of limitations – i.e., independent of interruptions – for particularly serious tax evasion.

Which acts are concerned?

The fifteen-year statute of limitations applies to all named cases of particularly serious tax evasion (Section 370 (3) Nos. 1-6 AO). Practically, the most common case is the reduction of taxes “to a large extent”. According to the case law of the Federal Court of Justice, a large scale exists for any tax evasion exceeding EUR 50,000. Especially in the corporate sector, such amounts are quickly reached, e.g. in the case of (conditionally) intentional evasion of income tax, sales tax or wage tax.

The provision shall be applied retroactively to all acts not yet barred by the statute of limitations at the time of its enactment. Following negotiations in the Bundesrat, the law is expected to be promulgated before the end of December.

Impact on law enforcement

The extension of the statute of limitations initially means that cases of particularly serious tax evasion do not become time-barred until 15 years have elapsed since the act was completed. The absolute statute of limitations, i.e. the period when a crime becomes time-barred at the latest, irrespective of any interruptions, e.g. due to investigative measures, is even 37.5 years.

Effects on voluntary disclosure

The new statute of limitations must also be taken into account when dealing with past tax misconduct by means of a self-disclosure that exempts the taxpayer from prosecution. An effective voluntary disclosure requires information on all tax offenses of a tax type that are not subject to the statute of limitations, but at least on all tax offenses of a tax type within the last ten calendar years. This means that cases of particularly serious evasion must be disclosed on the basis of a fifteen-year statute of limitations, instead of the previous ten years. The effectiveness of voluntary disclosures already made is not likely to be affected by the amendment. In this respect, taxpayers may legitimately rely on the fact that legal peace has been established by a voluntary disclosure made in accordance with the law.

Effects on the limitation period for tax assessment

The extension of the statute of limitations for prosecution may also affect the statute of limitations for tax assessment. In the case of tax evasion, the tax assessment period does not expire until the prosecution of the tax offense has become time-barred (so-called suspension of expiration, Section 171 (7) AO). In the case of particularly serious tax evasion, the statute of limitations for tax assessment does not expire until 15 years after the act has been committed.