According to a decision by the Higher Regional Court of 30 October 2015 (AZ 2 Ss 63/15 (71/15)), knowledge of the relevant media coverage of the purchase of a "tax CD" excludes the effect of a voluntary disclosure as exempting from prosecution in any case if the CD contains data from a bank engaged by the taxpayer and this has been reported on in the media.
In principle, anyone who has evaded taxes can get away without a penalty if they "come clean" and correct the incorrect information, complete the incomplete information or make up for the omitted information for all tax offences that are not time-barred, but at least for the last 10 years, for one type of tax. However, this voluntary disclosure is subject to strict conditions. These include the fact that the offence has not yet been discovered at the time of the voluntary disclosure and the offender did not know this or should have expected this on a reasonable assessment of the facts. In the case to be decided by the Higher Regional Court, the tax authorities had acquired tax data on a CD at the turn of the year 2011/2012, which had been reported in the press, naming the bank. The voluntary disclosure was then made in September 2012. By this time, the tax authorities had already analysed the data and allocated the taxpayer's income. According to the decision of the Higher Regional Court, the perpetrator had to at least expect the offence to be discovered. The concept of "having to reckon" is a rule of evidence to the detriment of the offender.
The decision of the Higher Regional Court represents a deviation from and tightening of the previously prevailing legal opinion. The previously prevailing opinion assumes that the "need to reckon" only exists if the offender should have been forced to discover the offence. Finally, the constitutional principle of "in dubio pro reo" ("in case of doubt for the accused") applies in criminal law.
The more the purchase of tax CDs is reported in the press, the narrower the time corridor becomes in which a voluntary disclosure with the effect of exempting from prosecution is still possible. As soon as the name of the bank is mentioned at the latest, a voluntary disclosure is no longer possible following the decision of the Higher Regional Court.
