Tax, fee and similar obligatory payment evasion

Legal definiton 

Section 240 of the Criminal Code:

(1) Whoever, to a greater extent, evades tax, customs duty, social security contributions, contributions to the state employment policy, accident insurance premiums, health insurance premiums, fees, or other similar obligatory payments, or fraudulently obtains a benefit from any of these mandatory payments, shall be punished by imprisonment for six months to three years or disqualification.

(2) The perpetrator shall be punished by imprisonment for two to eight years if:

a) the act mentioned in paragraph 1 is committed with at least two other persons,

b) an official seal is broken to facilitate such an act, or

c) the act is committed on a significant scale.

(3) The perpetrator shall be punished by imprisonment for five to ten years if:

a) the act mentioned in paragraph 1 is committed on a large scale, or

b) the act mentioned in paragraph 2(c) is committed in connection with an organized group operating in multiple countries.

(4) Preparation is criminal.

Subjective aspect - intent

Tax, fee and similar obligatory payment evasion is an intentional criminal offence. A criminal offence is committed intentionally if the perpetrator wanted to violate or endanger a legally protected interest in the manner specified by the Criminal Code (direct intent), or if the perpetrator knew that his actions could result in such a violation or endangerment and accepted the possibility of it occurring (indirect intent).

If the act can be deemed as mere negligence rather than intent, it does not constitute the described criminal offence. 

Defense

There are various defense strategies available. Given the elements of this criminal offence, the following questions may be relevant:

• What payment was involved?
  
• or what reason was the corresponding duty not acknowledged?
• What was the source of the duty?
• Was it clearly formulated?
• To what extent was the payment to be evaded?
• What information was available to the person in question at the relevant time?
  
• What information could the person have obtained?
• Did the person seek assistance from an expert?
• Did the person act on the advice of a tax advisor?
• Did the person follow an expert report or professional advice?
  
• Did the person have reason to trust the expert?
• What was the context of the matter at the time?
• Was the perpetrator's intent directed towards the decisive facts?