Representation in criminal tax proceedings
Criminal tax proceedings place an enormous strain on the accused. There is sometimes a risk that substantial fines or even custodial sentences. This makes it all the more important to seek legal advice from a solicitor specialising in criminal tax law at an early stage.
Surprise …
The accused may, under certain circumstances, initially be completely unaware that criminal tax proceedings have been initiated – usually by the fines and criminal cases department of the relevant tax office on the basis of an initial suspicion. Unless they are already expecting criminal tax proceedings, they usually only find out about this when they receive what is known as the ‘notice of initiation’.
The accused need not, in fact, be informed that they are under investigation until they are asked to provide information or produce documents relating to the possible offence. The criminal investigation departments therefore have the option of conducting investigations even after criminal proceedings have been initiated, without notifying the accused. However, a different rule may apply if the suspicion arises as a result of an ongoing external audit and the auditor continues the audit without notifying the accused. This may lead to the findings obtained being excluded from evidence.
Right of access for the defence counsel
A fundamental prerequisite for an effective defence in criminal tax proceedings is that the defence lawyer is provided with comprehensive information on all the circumstances of which the accused is charged. In addition to personal discussions with the client, this is achieved by inspecting the criminal case file. In principle, the defence lawyer has a right to inspect the case file once the preliminary investigation has been opened. This right may only be refused under certain circumstances – primarily where the purpose of the investigation would be jeopardised. However, once the investigation has been concluded, the right to inspect the file applies in any event and may no longer be refused.
The defence lawyer must be familiar with the contents of the criminal case file in order to determine the appropriate defence strategy and to prepare the so-called ‘statement of defence’ – the accused’s response to the charges, should they choose to respond. For tactical reasons, it may also be advisable for the accused to exercise their right to remain silent.
A word to put your mind at ease
Not every criminal tax case results in a conviction of the accused. In addition to proceedings being discontinued due to a lack of reasonable suspicion or because the offence is minor, in many cases the proceedings may also be brought to an end subject to certain conditions, or a penalty may be imposed by means of a penalty order. It is also important to maintain regular contact with the investigating authorities.
Person responsible Matthias E. Grimme, solicitor, specialist in tax law and tax adviser specialises in criminal tax law and has many years’ experience in all areas of criminal tax law.