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

11.06.2025 | KPMG Law Insights

Omnibus IV brings some simplifications, especially in product law

The EU Commission proposed the fourth omnibus package on May 21, 2025. Omnibus IV contains simplifications in relation to numerous product law requirements and…

06.06.2025 | KPMG Law Insights

Business Travel and Assignment in the USA: What you need to know about US immigration

The recent changes in US immigration rules are causing uncertainty worldwide. In particular, since the new US government took office, processes regarding entry into the…

02.06.2025 | Deal Notifications

KPMG Law and KPMG advise Diehl Defence on the acquisition of e.sigma

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) and KPMG AG Wirtschaftsprüfungsgesellschaft (KPMG) advised Diehl Defence GmbH & Co. KG (Diehl Defence) on the complete acquisition of…

27.05.2025 | KPMG Law Insights

Cell Phone Inspections at US Border and Beyond: What to Expect

Key facts: U.S. immigration officials monitor public social media data and travelers should be prepared to share details about their personal social media accounts. All…

14.05.2025 | KPMG Law Insights

BGH on customer installations: Decision orders application in line with the directive

In a ruling dated May 13, 2025, the BGH classified the supply infrastructure in the specific case of a residential complex in Zwickau as a…

13.05.2025 | In the media

KPMG Law expert in Spiegel article on energy policy

Dirk-Henning Meier, Senior Manager in the energy law department at KPMG Law, is quoted in a recent article on energy policy in Der Spiegel.…

13.05.2025 | Career, In the media

azur Karriere Magazin – All AI or what?

Artificial intelligence has long since arrived in law firms and legal departments. But dealing with it is a skill that needs to be learned. Many…

13.05.2025 | KPMG Law Insights

Initial experience with the Single-Use Plastics Fund Act: what manufacturers should bear in mind

Beverage cups, foil and plastic cigarette filters litter streets, parks and sidewalks. The cleaning costs are borne by the local authorities. The Disposable Plastics Fund…

07.05.2025 | KPMG Law Insights

Termination of fixed-term rental agreements in the case of pre-leasing

In the case of a pre-leasing, the tenancy only begins at a later date, usually the handover date. In such cases, the contracting parties usually…

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