On 15 July 2020, an explosive report from North Rhine-Westphalia (NRW) caused quite a stir. The State Office for Combating Financial Crime has evidence of tax evasion by influencers totalling EUR 300 million in NRW alone.
The investigators drew on 6,000 data sets from social media platforms and apparently found evidence of undeclared income. These are influencers who earn tens of thousands of euros per post and have correspondingly high tax obligations.
The clock is ticking - risk of consequences under criminal tax law
The undeclared income is likely to constitute tax evasion in accordance with Section 370 AO. Depending on the extent of the evasion, this can also lead to custodial sentences. The law offers taxpayers the opportunity to obtain immunity from prosecution within the framework of voluntary disclosure in accordance with Section 371 AO. In principle, however, this only applies if the offence has not already been discovered (e.g. in the form of an audit order or the initiation of criminal or fine proceedings). However, Section 371 para. 2 AO lists further criteria that may prevent a voluntary disclosure exempting from prosecution. The clock is therefore ticking to immediately check whether a voluntary disclosure is possible in order to avoid any criminal consequences.
International influencers - a look at German tax law
The fact that influencers based in Germany are subject to unlimited tax liability has become common knowledge in various forums. However, a certain number of influencers no longer live in Germany and have moved their place of residence abroad (e.g. to Dubai). Forums also like to philosophise about the model of "not being resident anywhere for tax purposes".
What many people do not realise is that it is always necessary to check whether Germany still has a right to tax the income. German tax law has a large number of regulations that lead to a Tax collection or tax deduction can lead.
Examples of this include direct deduction at source (§ 50a EStG) if artistic performances be carried out in Germany. The Departure from Germany itself must always be analysed, as the Foreign Tax Act (AStG), for example, continues to assume an extended tax liability in Germany under Section 2 AStG if you emigrate to a "low-tax country". Last but not least, the tax law in force since 2025 Impending exit tax on existing investments in funds/ETFs must be observed.
However, the facts of a continuing unlimited tax liability may also exist if, for example, the so-called key power has a residence in Germany. Furthermore, it must always be checked whether any double taxation agreements contain provisions to avoid double taxation in Germany and the country of residence.
Conclusion
National and international tax compliance is complex due to the large number of regulations. This article is therefore intended to sensitise people to be "compliant" in order to avoid criminal consequences. But also to show that in an international context, the tax consequences in Germany must be examined on the basis of each individual situation.
Your expert for tax compliance and Tax audits/tax disputes Patrick Bubeck and the TAXGATE team support you with current tax audits and with declarations in the context of voluntary disclosures as well as with ongoing compliance activities.
