Consequences of “legal advice” by tax investigators

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

http://www.haufe.de

 

Our office in Munich

You will find our office at Fasolt-Strasse 7 in Munich, very close to Schloss Nymphenburg. Our team consists of highly motivated attorneys who are available for all the needs of our clients. In special cases, our law firm cooperates with selected experts to represent your interests in the best possible way.


About the author

Dr. Johannes Fiala Dr. Johannes Fiala

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.
»More about Dr. Johannes Fiala

On these pages, Dr. Fiala provides information on current legal and economic topics as well as on current political changes that are of social and/or corporate relevance.

Arrange your personal appointment with us.

Make an appointment / call back service

You are already receiving legal advice and would like a second opinion? In this case please contact Dr. Fiala directly via the following link.

Obtain a second legal opinion

The first telephone call about your request is free of charge.