Jurisprudence by the Fiscal Courts allows for factual agreements to be entered into during the course of criminal tax proceedings. Such an agreement is governed by the law pertaining to agreements in criminal matters, § 257c StPO. It is important to note, that a factual agreement must not be coerced by the pressures exerted in criminal tax proceedings. An agreement under such circumstances would be invalid. This would be the case, if the Tax Authority threatens detrimental ramifications in respect of the criminal proceedings, should the taxpayer refuse to enter into a factual agreement.
The dual authority in the case of pending criminal tax proceedings must also be observed: The factual agreement must be signed not only by the assessment division of the Tax Authority, but also by Authority for Fines and Offences (Straf- und Bußgeldsachenstelle). It should be signed by the responsible division manager. The Authority for Fines and Offences will not be bound by a factual agreement, if it was only signed by the Tax Authority.
Our tax law specialists in Cologne will also clarify which sanctions for tax offences may be considered by the Authority for Fines and Offences or the public prosecutor. The aim is to have the criminal proceedings terminated without causing much commotion. If sanctions are inevitable, an agreement may also be sought with the Authority for Fines and Offences in respect of a possible conclusion of the proceedings. This is however only one option for the client, because cooperation is not mandatory in the defence of a case.
Notes by the defence lawyer: All authorities involved in the matter should consent to a factual agreement, in order to avoid disagreeable additional claims. The Authority for Fines and Offences must therefore be brought to the table in due time. It may otherwise depart from the factual agreement and possibly issue an expensive penalty order, which the client was no longer expecting.
If a “lid” should be put on the criminal proceedings, the new regulation pertaining to plea deals in criminal matters (§§ 160b, 257c StPO) must be observed. The Federal High Court only considers plea deals to be legally binding, if they comply with the conditions set forth by the law. This includes the provision, that a criminal court is not permitted to pledge punishment by penalty points, but is only permitted to offer a penalty within the prescribed range for the offence.
Note by the defence lawyer: The formal requirements set out in §§ 160b, 257c StPO must be complied with at any cost. This is, because if the accused makes concessions without having regard to these provisions, or even confesses the offence, it may lead to a harsh wake-up call when the plea deal is later set aside.