Taxation and criminal proceedings are often closely intertwined. It is frequently difficult to separate tax investigations from criminal tax investigations.
The resulting problem raises the question of which regulations should take precedence in the event of a conflict—the provisions of the Tax Code (taxation proceedings) or those of the Code of Criminal Procedure (criminal proceedings)?
Section 393 of the German Tax Code (AO) regulates the relationship between criminal proceedings and taxation proceedings. According to Section 393(1) sentence 1 AO, the rights and obligations of taxpayers and the tax authorities in taxation and criminal proceedings are governed by the regulations applicable to the respective proceedings.
In principle, the Tax Code assumes that the proceedings are independent and of equal status, meaning that the taxpayer remains obliged to provide information and cooperate in the taxation proceedings even if criminal tax proceedings are running in parallel.
Section 393(1) sentence 2 AO establishes a limitation to this assumption in the form of a statutory provision stating that tax enforcement measures are inadmissible if there is a risk of self-incrimination regarding a tax offense or administrative offense.
Consequently, the taxpayer’s cooperation in tax investigation proceedings can no longer be compelled once criminal tax proceedings have been initiated—because no one is required to incriminate themselves (nemo tenetur se ipsum accusare).
This means that the accused in criminal proceedings is not required to cooperate in the investigation of the offense and may refuse to make any statement on the matter. The right of the accused to remain silent regarding the charges is one of the fundamental principles of the rule of law in criminal and fine proceedings. No one is obligated to contribute to their own conviction.
Beyond the right to silence, the accused is entitled to refuse any active cooperation in their own conviction. Therefore, they are not required to hand over evidence, as it makes no difference whether their conviction is facilitated by coerced statements or the forced production of documents. The accused has a right to passivity and is only obligated to tolerate measures taken under criminal procedural law.
The right to silence and the freedom from the obligation to cooperate are specific manifestations of the general and comprehensive right against self-incrimination. This right has constitutional status, as it is derived from the principle of the rule of law (Art. 20(3) GG) and the right to respect for human dignity (Art. 1(1), Art. 2(1) GG). It follows from Art. 2(1) GG in conjunction with Art. 1 GG that it would be unreasonable and incompatible with human dignity to exercise compulsion to force someone to provide the basis for a criminal conviction through their own statements.
However, since tax cooperation obligations persist, a conflict with the accused’s right to silence can arise when the facts under assessment have both tax and criminal law significance.
The freedom from self-incrimination in criminal law and the tax obligation to provide information and cooperate conflict where the taxpayer, in the proper fulfillment of their tax duties, must disclose information that provides evidence of offenses they have committed. This creates a predicament, as the taxpayer cannot exercise their right against self-incrimination without violating their obligations in the taxation proceedings.
Since the taxpayer, in view of their constitutionally protected right not to have to cooperate in their own conviction, cannot simultaneously be obligated to fulfill their tax information and cooperation duties, a clear tension arises. This tension, which must be resolved, raises the question of which procedural principle must be given precedence in cases of conflict.
Section 393 AO is aimed at resolving precisely this conflict between the freedom from self-incrimination in criminal law and the statutory duties to provide information and cooperate in tax law.
In this respect, the taxpayer is granted a specific right to silence; that is, while their tax cooperation obligations remain even in the event of a risk of self-incrimination, they can no longer be enforced using tax enforcement measures.