2. Statute of limitations under criminal law
The limitation period under criminal law for tax evasion is in principle 5 years, § 78 III Nr. 4 StGB. Since 25.12.2008, however, § 376 AO in its new version applies, according to which in the cases mentioned in § 370 III S. 2 Nrn. 1 to 5 AO, the limitation period under criminal law is 10 years. If, for example, there is tax evasion on a large scale (§ 370 III S. 2 Nr. 1 AO – according to the latest case law as a rule at an amount of € 50,000.00 or in the case of non-assessment at € 100,000.00), this can still be punished after 10 years.
Also in the cases of criminal statute of limitations of ten years tax and criminal law periods do not run parallel, since the beginning of the period is determined differently. The criminal statute of limitations period begins to run with income tax evasion with publication of the tax assessment notice, since at this time the tax evasion success occurred, i.e. the act is terminated in the sense § 78a StGB. The 3-day fiction of § 122 II AO does not apply to the calculation of the criminal law periods, since it would be at the expense of the accused.
The 10-year criminal statute of limitations in the cases of § 376 AO did not come into force until 25.12.2008. According to the transitional provision of § 23 to Art. 97 EGAO, § 376 AO does not intervene in the new version if the criminal law periods under the old legal situation had not expired on 25.12.2008 (= day of entry into force of § 376 AO). At least for the years up to 2002 it applies that these were already statute-barred due to the 5-year statute of limitations at that time according to old right before 25.12.2008 (= effective date for transitional arrangement). These years do not revive due to the transitional regulation of § 23 in Art. 97 EGAO. They are finally statute-barred. However, there is no protection of legitimate expectations to the effect that a perpetrator can rely on the fact that an act that has not yet become statute-barred will expire after a certain period of time. In other words, from 2003 at the latest, an extension of the criminal statute of limitations cannot be ruled out due to the new version of the law.
In the course of the amendment to the right to a voluntary report exempting from punishment as of 1st January 2015, § 371 S. 2 AO now expressly stipulates that the voluntary report must cover all tax offences of a type of tax within the last ten calendar years.