Search by the tax investigation office in Germany: When the tax investigation office arrives on the doorstep, panic is rife – and it’s deliberate. In many scenarios, it’s part of the process to deliberately increase stress and pressure in an already oppressive situation. The hope of sparing oneself embarrassment and annoyance through supposed explanations then does the rest. And it is precisely here that this applies: The surprise visit of the tax investigation is reason enough to keep calm and to realize that from now on the time for one’s own defense has come.
Search by tax investigation
Since, in principle, an initial suspicion is sufficient for a search by the tax investigation department (“SteuFa”), even seemingly minor occasions can trigger a search. The core issue is always the “control communications” between the authorities.
Even if, in principle, the public prosecutor’s office is responsible for criminal cases, an exception is made in favor of the tax officials, who are better equipped (and trained) in criminal tax cases, and Section 386 (1) AO grants the tax authorities special competence. Based on this, the tax authorities are then responsible,
- if it is to be investigated exclusively for a tax offense – or
- if an act constituting a tax offense simultaneously violates other criminal laws and its violation concerns church taxes or other public levies that are linked to taxation bases, tax assessment amounts or tax amounts
Jens Ferner
Criminal defense lawyer in GermanyNotes on the moment of the search by the tax investigation department
Ahead: Keep quiet! Don’t sign anything, don’t fill out any leaflets, simply don’t say anything at all, except that you want to speak/phone your lawyer immediately. Remember that your counterpart is trained in interrogation tactics and psychology: They try to build up further pressure to get you to talk. Partly this goes so far as to give the impression that the whole matter will end quickly with enough cooperation – do not be fooled.Ahead: Keep quiet! Don’t sign anything, don’t fill out any leaflets, simply don’t say anything at all, except that you want to speak/phone your lawyer immediately. Remember that your counterpart is trained in interrogation tactics and psychology: They try to build up further pressure to get you to talk. Partly this goes so far as to give the impression that the whole matter will end quickly with enough cooperation – do not be fooled.
Search? Remember that your counterpart is trained in interrogation tactics and psychology! Specialist lawyer for criminal law Ferner helps with criminal proceedings in Germany
- The legal basis of the house search must be clarified: Is there a search warrant or alleged imminent danger?
- Have any warrant shown to you first and then handed over.
- In the search warrant for the house search a suspicion is concretized or should be: Read calmly, which crime and which crime period are named. Also pay attention to when the search warrant was signed, these data are already of interest to your lawyer on the phone in advance.
- The search leader of the house search has to identify himself as such, let him show you the service ID and note down contact details.
- Contact immediately, still before the beginning of the house search, your lawyer and/or the tax adviser. I know of measures in which clear announcements are made such as “No phone calls here”, do not let yourself be impressed by this and vehemently insist on speaking to your lawyer. If you have hired a lawyer, it should be discussed with him in advance whether and under what conditions he will come to the search. If he does come, ask him to wait with the search until he arrives. I myself usually talk to the search officer myself, so far only once such a conversation was refused.
- There are some factual and legal formalities that you should have in mind during the house search: You have the right to remain silent and are to be instructed about it. Don’t babble, it doesn’t help, don’t let yourself be lured by promises it would go faster! The officials know before what concretely they look for and are trained straight with the tax investigation regarding the bringing about of further coincidence finds. Even if you remain silent, a civilized procedure is possible: A search procedure can be agreed upon, for example, and care should be taken that not all rooms are searched at once, but step by step.
- You have the right to have witnesses present during the house search. However, as a general rule, keep the circle small. Witnesses of the municipality you should send away immediately before the beginning of the house search, in these you have no interest.
- Schwierig und besser durch einen Rechtsanwalt kontrolliert: Bei Unterlagen deren Status der Beschlagnahme unklar ist, ist darauf zu achten, dass diese während der Hausdurchsuchung versiegelt und gesondert beschlagnahmt werden.
- Make it clear not to hand over documents during the house search voluntarily. For expediting and tactical reasons, documents that are specifically sought can be “made available”, but under no circumstances should an immediate handover take place.
- There is no obligation on the part of the tax investigators to disclose passwords or access data during a house search. Whether this makes sense in individual cases, for example to actually prevent the seizure of entire computers, must be clarified individually in each case; there is no general advice.
- Employees do not have to say anything in front of tax investigation officials during the house search; there is no means of coercion here. Employees should be aware that, depending on their position and activities, they may be accused of their own criminal liability, e.g. for aiding and abetting.
- Make it clear that you urgently and immediately need copies of the necessary business documents. Ask the tax investigation to be allowed to make copies during the search.
- Even if asked by the tax investigation: You do not release your tax advisors or attorneys from the duty of confidentiality without a thorough consultation with your criminal defense attorney!
- They insist on the handing over of a detailed seizure list of the house search by the tax investigation (“Mitnahmeverzeichnis”).
In companies with several employees, a procedure should be clarified in advance, for example that when the tax investigation arrives at the reception, a specific contact person in the company is to be informed immediately, who will coordinate the further procedure and lead the communication. Almost childishly naive is the attitude widespread in many companies, one would do nothing forbidden – who is constantly advised and supervised by a lawyer anyway should use the opportunity to address this issue as well .
Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
- Understanding Greenwashing: Legal Landscape and Risks for International Companies in the EU and Germany - 17. September 2024
- Overview of Criminal Liability for Corruption Offenses in Germany - 17. September 2024
- Copyright challenges in the training of generative AI models in Germany - 17. September 2024