External audit and financial criminal proceedings: rights and obligations of the person liable for payment (Part 3)

The article provides an overview of the key obligations of the person liable for payment in the context of an external audit (or „business audit“) and in the financial criminal proceedings. Of course, the rights of the taxpayer are also not overlooked.

1. The external audit under the Federal Tax Code (BAO)

The tax authorities are required to carry out careful surveys of everything that serves to determine the amount of taxes, to collect and continuously supplement and exchange information about it, with the aim of collecting and ensuring the most equal treatment of all taxpayers. Information provided by taxpayers and circumstances known to the authorities are also to be examined and evaluated in the interests of the taxpayers. Every taxpayer Obligations to cooperate, In particular, the Disclosure and duty of truth, This is the complete and truthful disclosure of everything that concerns the existence and scope of his tax obligation. This takes place primarily in the form of tax returns, but also includes other disclosures. The person liable to pay tax must ensure that the „the official acts necessary for the implementation of the excise laws“ enable. As part of an external audit, the authorities of the tax authority are entitled to access the systems within the usual business or working hours. Access to the corresponding Properties and facilities to grant and Information to be granted. A director of the company is suitable space to make necessary aids available free of charge. Place of examination In principle, the operation of the person liable for payment is the responsibility of the tax advisor, and in the case of small and medium-sized businesses, the tax advisor's office. Initially, the auditor to be exhibited and the Examination assignment must include the subject matter (types of taxes) and the periods of the business audit. The external audit ends with the Final discussion, the content of which is to be recorded in writing. § 255 of the BAO provides for the possibility of a written explanation. Remedy for appeals on the part of the person liable to pay the tax. Any appeal submitted thereafter is inadmissible. This waiver may be the result of a „negotiation“ with the tax inspector, who in turn wishes to avoid a costly legal appeal procedure. The prerequisite for a waiver of an appeal that is effective before the issuance of a notice is that the person liable to pay the tax is informed, among other things, of the amount of the tax and the deviations from the previously established calculation.

2. The financial criminal proceedings under the Financial Criminal Act (FinStrG)

If, as a result of the external review, it comes to Initiation of financial criminal proceedings, The powers of the authority and the rights of the - now-accused - are also changing. For intentional financial offenses, the punitive value of which generally exceeds €100,000, the Court of jurisdiction. In the field of (financial) criminal law, Arrests, Seizures as well Searches of persons and premises provided. In principle, the financial criminal investigation authority requires a written order with reasons from the competent chairman of the panel of judges for house and person searches. In the case of Danger of being late An oral order is sufficient for the time being; the written order must be delivered within 24 hours. A home or person search may also take place if, due to imminent danger, obtaining an oral order is not possible. A record must be made of the reasons and acceptance of imminent danger. Unlike the external examination under the BAO, where there are obligations to cooperate (see above), the constitutionally guaranteed procedure in financial criminal proceedings applies. Principle, that the The accused does not have to burden themselves. However, a confession or statement that has significantly contributed to establishing the truth shall be considered Mitigating factor in the assessment of the penalty. Evidence obtained unlawfully (e.g., unlawful opening of sealed documents) may not be used against the accused in financial criminal proceedings. An examination ordered by the financial criminal authority may also take place over periods that already constitute a (external) examination. No notification of the examination must be given. The accused may, among other things, appoint a defense counsel and has the right to access the records.

Since 1.1.2011, the regulation regarding the Shortening bonus According to § 30a FinStrG, which is a penalty suspension. The authority is authorized to impose a tax increase of 10% on the outstanding amounts in the event of suspicion of a financial offense. This amount may not exceed €10,000 per tax period and a total of €33,000. The person liable for tax must agree to this procedure and waive any appeal. The tax increase and the outstanding amounts must be paid in full within one month. There is no possibility of deferring payment. The result is impunity. According to the Ministry of Finance, another prerequisite is that no reduction allowance has been claimed within the last five years. If a financial criminal proceedings is already pending or a self-disclosure has been submitted, the reduction allowance is not permissible. According to § 25 FinStrG has the authority from the initiation or further conduct of a criminal proceedings to be expected, If the offender's fault is slight and the act has had no or only insignificant consequences. At most, a Warning is granted. § 143 FinStrG provides for Simplified procedure without oral proceedings and with termination by Order of punishment Before. Requirements include, among other things, that the facts of the case are sufficiently clear and that there is no jurisdiction of the panel of judges.

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