IV. Matters of law
From the perspective of the fiscal authorities, the question arises as to whether the Fiscal Code provides instruments that are suitable for closing the gaps in the documentation.
1. Economic power of disposition
In part, attempts are being made to get the problem of evidence under control by assuming an accrual for the programmer at the moment the money arrives at the agency. However, this solution would result in treating the agency “like a bank”. Yet, this does not conform with reality, because an accrual pursuant to § 11 of the German Income Tax Act would presuppose that the respective consultant had received the economic power of disposition over the money. Yet, in those cases where, according to the internal agreement, the programmers neither had a claim to the money nor actually received any, this is not the case.
2. Comparable cases
One is tempted to fall back on knowledge known from other proceedings. Rightly enough, a differentiation can be made which was developed by the Higher Regional Court in Frankfurt in a different context (5.5.10, 4 U 214/09, PStR 10, 292):
• it is always illegal to maintain the existence of a crime (“whether”) through evidence of similar constellations.
• insofar as evidence of a crime (“whether”) can be presented precisely, it may be permitted to estimate the amount of money generated (“how”) in a second step by using comparative figures.
Even this might fail according to the status quo of knowledge, because there are no statistics available such as those used in the case of gross profit surcharges. Nor is there a holistic approach among the invoicing agencies. Taking recourse to the commissions known from other cases (Frank, PStR 11, 311: “5 % to 20 %”) is also not possible because frequently, several interim companies were also involved.
One case is known, for example, where the consultant disclosed his actual income at a later point in time. The result was the commissions kept back by the agencies varied from 6% to 62%.
In addition, the special payments were partly paid in some years, and not in others, meaning that a conclusion based on the period taxation principle from one year to the next is out of the question.
3. Criminal statute of limitations
Frequently, some of the years in question have already fallen under the statute of limitations in terms of criminal law. Regarding tax assets, the extended assessment period of § 169 section 2 S. 2 of the Federal Fiscal Code applies, but only if tax evasion has been proven. The basic principle of “in dubio pro reo” (Federal Fiscal Court 7.11.06, VIII R 81/04, PStR 07, 93; Federal Fiscal Court 2.4.09, VIII B 176/08) applies. Increased obligations to co-operate or obligations to provide information such as stated by § 90 section 2 Federal Fiscal Code for cases with a foreign element do not exist (cf. Wulf, Stbg (“Die Steuerberatung”: A professional journal) 08, 445, 451).