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The tax emergency – the search

from
Markus Schmuck
Lawyer
Specialist in criminal law

Give me a call: 0261 - 404 99 25
E-Mail:

Searches as part of criminal tax proceedings are carried out by surprise and are emotionally challenging for those affected. Therefore, dealing with the topic helps to avoid mistakes and to assert one's own rights. The following contains some behavioral tips, explanations regarding what triggers suspicion, the legal basis and the rights and obligations of those affected.

Companies as well as individuals can be searched if there is reasonable suspicion. This naturally also applies to offenses in the area of tax law. Such suspicions may be triggered by control notices from other authorities, anonymous reports or so-called tax CDs.

Measures such as a search are always associated with a significant encroachment on the privacy of the person concerned. Knowledge of the legal basis, rights and obligations, as well as possible countermeasures, is important for every managing director and taxpayer.

Searches may only be carried out by tax investigators with a court-ordered search warrant. And although search measures often take place very early in the morning and the addressee of the search measure is surprised "in their pajamas," it is worth checking the search warrant for formal and substantive defects. In one of its landmark rulings, the Federal Constitutional Court stated: "A search warrant that contains no factual information whatsoever about the content of the accusation and does not mention any grounds for evidence suggests that there has been a lack of independent examination of the conditions for ordering the search. It also does not allow the accused to properly defend himself against the accusation of the offense and to control the search on his part, as well as to counteract any escalation in its execution within the scope of his legal options from the outset. "

Consequently, the person affected by the measure should first have the district court order handed over to them and then analyze its content on the basis of the written specification of the facts. However, when making any decisions that need to be made, it must be taken into account that the situational aspect of the search is to be seen against the background of one's own emotional state. Company and private operations are significantly affected by the unexpected access of investigators. Those affected or those responsible for making decisions often make serious mistakes here by conducting "informational talks" with tax investigators in the hope of being able to bring about a quick and uncomplicated resolution of the matter, thus providing the authorities with initial investigative leads or chance finds.approach for the authorities. Particularly in view of the possibly reprehensible defectiveness of the search warrant and a prohibition of use that may result from it, it is therefore advisable to proceed calmly and to make use of one's right to refuse to give evidence. A defense attorney should be consulted during the ongoing search. A "handcrafted" approach is unprofessional and often leads to problems that would not have existed if the correct approach had been taken.

Tips for tax emergencies

1. Ask to see the officials' identification cards and note down the names and the office of the officials.
2. The written search warrant must be presented to you. Read it carefully and without comment; keep it or make photocopies.
3. Demand that the search not begin until your trusted attorney and/or tax advisor and/or auditor is present. However, there is no legal right to this.
4. Even if officials should try to obtain information on the matter in a seemingly harmless conversation, do not provide any information. Consistently exercise your right to refuse to give evidence!
5. Clarify technical questions such as the possibility of being able to secure or photocopy the documents or data required in the company before they are removed.
6. Only allow the interrogation of suspects and/or witnesses in the presence of a lawyer! Both the respective suspect and the witness have the right to consult a lawyer at every stage of the proceedings.
7. Demand a detailed list of the seized items (e.g. not: "5 folders with written documents") and refuse to sign a confirmation if the list is not sufficiently specific.
8. Do not make any criminal procedural statements, such as waiving legal remedies or confirming the voluntary surrender of the seized items.

The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.