The voluntary disclosure is a way to return to tax legality without penalty. However, this is only successful if the requirements for the voluntary disclosure are met.
Tax evasion can be harshly sanctioned, and tax offenders face heavy fines or even imprisonment. With the penalty-free voluntary disclosure, tax offenders still have the opportunity to return to tax honesty. However, the voluntary disclosure can only act without penalty if it meets the high requirements set by the legislator. It must be, above all, complete and timely, that is, before the discovery of the offense by the authorities, says attorney Michael Rainer, MTR Legal.
Of course, the information in a voluntary disclosure must be truthful for immunity from prosecution to be possible. A man did not adhere strictly to this and therefore failed with his voluntary disclosure at the District Court of Nuremberg-Fürth (judgment of May 4, 2022 – 12 Ns 508 Js 2272/20).
The then 80-year-old man was convicted of tax evasion by the Nuremberg District Court in October 2021 because he had concealed income from a sale transaction amounting to 687,500 euros in his 2016 income tax return. He appealed the judgment, arguing that there was a penalty-free voluntary disclosure. He claimed to have reported a consultancy fee of precisely this 687,500 euros to the relevant Nuremberg Tax Court in March 2019, which he had actually never received.
The Nuremberg-Fürth District Court did not accept this argument in the appeal procedure and confirmed the conviction for tax evasion. The court clarified that there was no penalty-free voluntary disclosure pursuant to § 371 of the AO. Apart from the fact that a tax court is not a tax authority and therefore an incorrect addressee for a voluntary disclosure, the accused did not properly inform about the capital gain from 2016 that was to be taxed. Instead, he feigned non-existent income that would have been taxable only in 2017, according to the LG Nuremberg-Fürth.
Mistakes in a voluntary disclosure do not have to be as obvious as in this case. Even small mistakes can already lead to the invalidity of the voluntary disclosure. Therefore, attorneys experienced in tax law should be involved in the voluntary disclosure.
