Search
Contact
03.06.2019 | KPMG Law Insights

Subsequent declarations during an ongoing external audit – Important amendment to the AStBV

Subsequent declarations during an ongoing external audit – Important change to the AStBV

Tightening of the administrative instruction on the treatment of subsequent declarations during an ongoing external audit

I. Background
As soon as a taxpayer realizes before the expiry of the assessment period that a tax return submitted by him or on his behalf is incorrect, he must immediately notify the tax office and correct it (Section 153 (1) sentence 1 AO). This obligation exists irrespective of whether an external audit has already been ordered for the tax period in question or whether it has even already begun. A notification is only dispensable for the specific audit period insofar as the tax audit has already determined the error in question (AEAO to § 153 AO, No. 3 sentence 5). As part of preventive counseling, the aim is regularly to ensure that a mandatory correction report also fulfills the requirements of a self-disclosure that exempts from penalties or fines (Section 371 of the German Fiscal Code (AO)) as a precautionary measure (as a so-called self-disclosure correction). However, an exempting voluntary disclosure is no longer effectively possible for taxation periods and tax types for which an audit order has already been announced. A voluntary disclosure exempting from fines pursuant to Sec. 378 para. 3 AO is still permissible in these cases, however.

II. Previous situation of instructions of the tax authorities
The treatment of such notifications is mainly regulated within the tax authorities by the Application Decree on Section 153 of the German Fiscal Code (AO) and the Instructions for Criminal and Penalty Proceedings (Tax) (AStBV). Accordingly, voluntary disclosures (even if they are not designated as such but are at least recognizable) are and were always to be forwarded to the Office for Fines and Criminal Matters (BuStra) for examination. In addition, such declarations must also be forwarded to the BuStra where there are indications that taxes have previously been intentionally or recklessly evaded. There is no obligation to submit declarations to the BuStra if they are undoubtedly based on subsequent knowledge of the taxpayer (no. 132, para. 1 AStBV). De facto, this resulted in a very considerable scope of judgment for the assessment officer when dealing with notices of correction.

III. Change due to the AStBV 2019
Effective January 1, 2019, the current 2019 AStBV went into effect.
This massively restricts the tax offices’ scope for assessment when dealing with subsequent declarations. Specifically, the tax offices are now instructed to submit all subsequent declarations (regardless of their designation or material content) that are submitted in the course of an ongoing external audit to the BuStra for examination (No. 131 (1) sentence 2 AStBV ). In our opinion, it can be assumed that this instruction will be interpreted comprehensively by the assessment officials and that, in the case of ongoing external audits, subsequent declarations for periods not (yet) covered by this audit will also be submitted directly to the BuStra.

IV. Recommendation for action
The tightened audit procedures outlined above can prove extremely treacherous in correction and post-declaration cases. In the future, the BuStra will receive significantly more cases of supplementary declarations for review than before. This applies in particular to cases in which it is no longer possible to make an exempting voluntary disclosure due to the blocking effect caused by the external audit. It is obvious that this also increases the risk of prosecution. If the specialists in the form of the BuStra are always brought on board in correction cases on the part of the tax office, it is advisable from the company’s point of view to also involve specialized lawyers and tax consultants at an early stage, in particular also with regard to a defense under criminal tax law that may subsequently be necessary. Together with our tax experts at KPMG AG Wirtschaftsprüfungsgesellschaft, we will be happy to assist you.

Please feel free to contact us with any questions you may have on these topics.

Explore #more

08.10.2025 | Deal Notifications

KPMG advised Adiuva Capital GmbH with Fact Books on the sale of KONZMANN Group

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) and KPMG AG Wirtschaftsprüfungsgesellschaft (KPMG) advised Adiuva Capital GmbH, a Hamburg-based private equity firm (“Adiuva“), in connection with the…

06.10.2025 | KPMG Law Insights

What the Green Claims Directive means for companies – an overview

With the Green Claims Directive, the EU will introduce extensive regulations on the requirements for permissible environmental claims. The aim is to prevent greenwashing so…

03.10.2025 | Deal Notifications

KPMG Law and KPMG support the restructuring of Groupe CAT in Germany

KPMG Law Rechtsanwaltsgesellschaft (KPMG Law) and KPMG AG Wirtschaftsprüfungsgesellschaft (KPMG) advised Groupe CAT on comprehensive restructuring measures with a cross-service team. Over a period of…

02.10.2025 | Deal Notifications

KPMG Law advises Epitype GmbH and MDG Molecular Diagnostics Group GmbH on the acquisition of significant assets of oncgnostics GmbH

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) provided comprehensive legal advice to Epitype GmbH, a company of the Dresden-based MDG Group, on the formation and subsequent…

02.10.2025 | In the media

KPMG Law Statement in ZEIT for entrepreneurs: We’ll take the 500 billion!

German construction companies are asking themselves: how quickly will the money come from the government? And they are worried that only the giants will benefit.…

01.10.2025 | KPMG Law Insights

Federal Network Agency reforms special network charges for industry and commerce

The Federal Network Agency is planning a fundamental reform of the special network charges for energy-intensive companies. Any change to the current privilege regime entails…

30.09.2025 | In the media

KPMG Law dominates the top 100 list of the new law firm monitor with eight lawyers

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) occupies an outstanding sixth place in the overall evaluation of the TOP 100 law firms in the current diruj…

29.09.2025 | KPMG Law Insights

MiSpeL draft: New funding for energy storage systems and charging points

On September 18, 2025, the Federal Network Agency published a draft for the “Market integration of storage systems and charging points” (MiSpeL for short). For…

29.09.2025 | KPMG Law Insights

Organizing the transformation and spin-off of corporate real estate with legal certainty

When real estate portfolios are to be transformed or spun off, the economic success depends heavily on the legal preparation. Complex legal issues often arise,…

25.09.2025 | KPMG Law Insights

MaGo update – roadmap for implementing the new requirements

On 14 July 2025, BaFin revised the circular “Minimum requirements for the business organization of insurance companies under Solvency II” (MaGo for SII-VU) and published…

Contact

Dr. Heiko Hoffmann

Partner
Munich Site Manager
Head of Criminal Tax Law

Friedenstraße 10
81671 München

Tel.: +49 89 59976061652
HHoffmann@kpmg-law.com

Arndt Rodatz

Partner
Head of Criminal Tax Law

Fuhlentwiete 5
20355 Hamburg

Tel.: +49 40 360994 5081
arodatz@kpmg-law.com

© 2024 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit https://home.kpmg/governance.

 KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.

Scroll