Cum-cum transactions continue to raise questions for banks, investors and prosecuting authorities years after they took place. The central questions are whether withholding tax credits were lawfully claimed and what follows when the tax treatment of a transaction is subsequently reassessed. Those affected need to identify any duty to correct earlier tax returns in good time and carefully assess the criminal-law implications. The article examines recent court decisions, the limits of voluntary disclosure and the issues they raise for the defense.
The problem of a defendant facing a judge who has previously stated in a written judgment that he or she is convinced of the guilt of the current defendant is discussed under the heading of “prejudice”. The decision of the Federal Constitutional Court of 27.01.2023 (Ref. 2 BvR 1122/22) brought the discussion in Germany to a temporary climax – but certainly not to its end. The case is currently pending before the European Court of Human Rights under application no. 25095/23.
Germany acquired electronic data from Dubai in June 2021 in order to uncover tax crimes. Several years ago, Germany had already purchased so-called data CDs from Switzerland, which led to the initiation of a large number of criminal tax proceedings.
On April 2, 2020, after extensive investigations by a concentrated action of law enforcement agencies from Germany, Austria, Serbia and Bulgaria, numerous measures were carried out. This resulted in a number of arrests and the seizure of funds amounting to over 2 million euro. The background are investigations against two groups of perpetrators who are said to have defrauded thousands of investors from all over Europe of a total of more than 100 million euros in recent years.
At the beginning of September 2019, banks in Frankfurt were searched again. According to media reports, the public prosecutor’s office is said to have expanded its criminal investigations against bank employees in the Cum-Ex proceedings.
In the last few months Ebay has unmistakably requested its commercial traders to prove that the sales and income generated through online trading have been declared to the tax office.
On 19 July 2019, the Cologne Fiscal Court ruled that the multiple refund of capital gains tax withheld and paid only once is not permitted. The case is not yet final. The court has admitted an appeal to the Federal Fiscal Court. Nevertheless, the ruling now is a signpost for further Cum-ex proceedings.
