For given cause the question arises, how the consultation of a tax self-disclosure by (former) tax investigators is to be legally evaluated.
It is obvious that former tax investigators without a license as a tax advisor (StB) or lawyer (RA) are entering the field of prohibited tax or legal advice when they assist in the voluntary disclosure. Even if contracts for advising or representing interests are thus null and void, such advisors are liable for all damages and consequential damages without a license (OLG Schleswig , judgement of 8.11.1985, Az. 14 U 174/84).
In this case, it is not even necessary to additionally prove fault. Advisors are liable to their client, for example, if carelessness results in a fine for the client (BGH, judgment of 14.11.1996, ref. IX ZR 215/95; BGH, judgment of 15.4.2010, ref. IX ZR 189/09). Compensable damages would also include compensation for deprivation of liberty, the necessary bail and subsequent loss of property and income ,any fines and for the costs of criminal defence.
In the case of unauthorised legal advice, this liability shall apply irrespective of the absence of professional indemnity insurance. With finance officials, for example tax investigators in age part time, the question also arises whether their privately attained “knowledge” is considered at the same time as official admits become. Only when the tax investigator appears at the taxpayer’s premises with a specific audit assignment is the path via a voluntary declaration blocked, $ 37 1II No. IAO .
For the sake of completeness: The submission of a self-disclosure by the taxpayer on the basis of incomplete information to the advisor can be judged as a conditionally intentional act. However, according to case law (BGH, judgement of 17.3.1995, file no. 2 StR 84/95), this does not yet lead to the adviser being an accessory after the fact.
by Dr. Johannes Fiala
by courtesy of
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Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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