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1. Breach of the duty of confidentiality

The most common reason for considering potential criminal liability is a search of the tax advisory firm during an investigation directed at the client. During such a search, there is a risk that the advisor might make spontaneous statements to investigating officers before being released from their duty of confidentiality, thereby committing a criminal offense under Section 203 of the German Criminal Code (StGB).

2. Actions typical of the profession that facilitate the offense

A classic scenario involves the tax advisor participating in the preparation or filing of incorrect tax returns or declarations (particularly advance VAT returns). While preparing and filing returns are actions typical of the profession—and initially "neutral" in nature—they become criminal aiding and abetting if the advisor is aware of the client's intent to evade taxes or recognizes the risk of criminal conduct as so high that, by participating, they effectively align themselves with a "perpetrator inclined to commit the offense."

3. Incorrect declarations/opinions or "courtesy" opinions

A frequent category of cases involves incorrect information provided to the tax authorities—whether initiated or endorsed by the tax advisor—regarding matters such as business expenses, tax planning structures, or permanent establishments; such actions deliberately lead the client into the realm of tax evasion. The Federal Court of Justice (BGH) has clarified that lawyers and tax advisors can be liable for aiding and abetting through incorrect or "courtesy" expert opinions if these reinforce the principal offender's resolve to commit the offense or provide them with a heightened sense of security.

4. Clients resistant to advice

A scenario frequently encountered in practice is the client who explicitly requests unlawful tax planning structures. The Federal Court of Justice requires that, if a client insists on an unlawful course of action, the tax advisor must—if necessary—terminate the mandate; Even to avoid committing administrative offenses himself, he must not submit a declaration aimed at reducing tax liability.

5. Involvement in Undisclosed Transactions and Offshore Structures

A tax advisor’s participation in arrangements designed to shield specific income or business transactions from taxation (undisclosed transactions, offshore companies, etc.) constitutes another typical category of cases. Recent case law also expressly recognizes the aiding and abetting by advisors in the context of complex tax evasion schemes (VAT carousel fraud, Cum/Ex transactions, offshore structures) where the advisor recognizes—or ought to recognize—the evasion structure yet nonetheless participates by preparing declarations or providing advice.

A tax advisor is under no duty as a guarantor. There is no general obligation to prevent tax evasion committed by others. Such a guarantor status could, at most, arise from Ingerenz (a prior act creating a risk)—for instance, if the advisor created a hazardous situation through earlier misconduct and failed to rectify it.

If you have any questions, please contact us at: kanzlei@wild.legal