What is a pre-tax credit
Existence of tax evasion in accordance with Section 33 (2) (a) FinStrG through unlawful assertion of an input tax credit.
The independent Finance Senate, as the second-instance financial penal authority, has, through its chairman, Hofrat Dr. Karl Kittinger, the other full-time member Hofrat Dr. Josef Graf and the lay assessors Dr. Wolfgang Seitz and Dr. Jörg Krainhöfner as further members of the Senate in the financial criminal case against the Bw. For tax evasion in accordance with § 33 Paragraph 2 lit. a of the Financial Criminal Act (FinStrG) on the appeal of the accused dated November 8, 2002 against the decision of the ruling panel at the tax office for the 1st District as organ of the Neunkirchen tax office from September 5, 2002, SpS 291/02-III, after the oral hearing on May 20, 2003 in the presence of the accused and the official commissioner Mag. Dagmar Ehrenböck and the secretary Edith Madlberger
The appeal is granted and the contested finding in its point 1.) of the guilty verdict, as well as in the sentence, in the verdict of costs and in the verdict of liability is revoked and recognized in the scope of the revocation in the matter itself:
According to §§ 136, 157 FinStrG, the financial criminal proceedings on suspicion of tax evasion according to § 33 (2) a FinStrG regarding sales tax December 1998 with a reduction of S 487,523.00 [point 1.) of the contested decision] will be discontinued.
For the remaining part of point 2.) of the guilty verdict of the contested decision regarding tax evasion according to § 33 para. 2 lit. a FinStrG in relation to the advance sales tax payments for the months October 1997, October to December 1998 in the amount of S 78,714.00 the fine according to § 49 Abs. 2 FinStrG at € 2,000.00 and the substitute custodial penalty in the event of uncollectibility according to § 20 FinStrG set anew with 5 days.
Pursuant to Section 185 (1) (a) FinStrG, the costs of financial criminal proceedings will be redefined at € 200.00.
Reasons for decision
With the decision of the verdict panel on September 5, 2002, SpS 291/02-III, the applicant (Bw.) Was found guilty of tax evasion under Section 33 (2) (a) FinStrG because he was intentional in the area of the Neunkirchen tax office
1.) as managing director of the company P. in violation of the obligation to submit advance notifications corresponding to Section 21 of the Sales Tax Act, resulted in a reduction in advance payments to sales tax for December 1998 in the amount of S 487,523.00 and considered this not only possible, but certain;
2.) as a taxable person in breach of the obligation to submit advance notifications corresponding to Section 21 of the Sales Tax Act, a shortening of advance payments to sales tax for October 1997, October to December 1998 in the amount of S 78,714.00 and this not only for possible, but for certainly held.
In accordance with Section 33 (5) FinStrG, a fine of € 16,400.00 was imposed on the Bw. And a substitute imprisonment for a period of 41 days to replace it in the event that it was uncollectible.
In accordance with Section 185 (1) (a) FinStrG, the costs of the financial criminal proceedings were set at € 363.00.
According to § 28 Abs. 1 FinStrG the liability of the company P. pronounced for the fine of € 14,000.00 imposed on the property.
In terms of content, the verdict panel stated that during the time of the offense the Bw. Was responsible for tax law matters of the company P. responsible managing director. Furthermore, he was also active as a sales representative. On the occasion of a at the company P. The special sales tax audit carried out for the period from December 1998 to September 1999 was found to have been deducted with regard to a project in G. input taxes, although tax-free sales according to § 6 Paragraph 1 Z. 9 UStG had been made. This finding led to an additional sales tax result in the amount of S 487,523.00.
In addition, as part of a special sales tax audit carried out at the Bw's sole proprietorship for the period October 1997 and October 1998 to November 1999, it was found that the accused had carried out deliveries and services despite the expiry of the trade license. In the course of the P. The special sales tax audit carried out, invoices to the sole proprietorship of the Bw. were found. This finding led to a sales tax surplus of S 78,714.00.
The present timely and formal appeal of the Bw. Dated November 8, 2002 (= date of posting, date of appeal with date 9/31/2002?) Is directed against this finding.
In terms of content, the Bw. States that the appeal is directed against point 1) of the verdict of the verdict of September 5, 2002. From January 28, 1999 he was managing director of the company P. and therefore not responsible for the stated period in violation of the obligation to submit advance notifications corresponding to § 21 UStG to have shortened advance payments of sales tax for December 1998 in the amount of S 487,523.00. Although he was aware that half of the property had been sold in G., there was a corresponding rental agreement for the second part, on the basis of which the input tax deduction resulted. To his knowledge, the documents required for this would be available at the tax office. Based on the documents that had been submitted to the tax office, the situation in this form was in order for him at the beginning of his management activity. During his activity as managing director, he also did not sell the rented property, although he was well aware that in the event of the property being sold, the input tax deducted in advance would have been due immediately.
On June 13, 2000, he was the managing director of P. eliminated. What happened to the objects afterwards is beyond his knowledge. Since he no longer has any business documents since his departure, he can only provide further information according to his memory.
The decision was considered:
Pursuant to Section 33 (2) (a) FinStrG, whoever deliberately, in breach of the obligation to submit advance notifications corresponding to Section 21 of the Value Added Tax Act, causes a reduction in sales tax (advance payments or credits) is guilty of tax evasion and this is not only possible, but for sure holds.
The findings of the verdict of the verdict panel of September 5, 2002 on point 1), which was contested in the context of the appeal in question, are based on the findings of a special sales tax audit of March 28, 2002.
Under number 3 of this report it was stated that the company P. built a two-family house in G. in 1998. Top A was sold with a purchase agreement dated May 7, 1998. Top B rented to P. according to the lease dated December 15, 1998. In the course of the special sales tax audit it was found that on the one hand the company P. an attempt was made to sell half of the share (item B), on the other hand, rent payments were never made on the basis of this lease. Ultimately, with the purchase agreement dated December 27, 1999, Top B. was sold to Z. for S 2,200,000.00 in return for payment. Due to the fact that the company P. With regard to the property in G. only made sales in accordance with § 6 Paragraph 1 Line 9 UStG 1994, the input tax deduction in the amount of S 487,523.00 for the month of December 1998 is not permitted in accordance with § 12 Paragraph 3 UStG.
The files show that the Bw., Who was registered as managing director in the commercial register between January 28, 1999 and December 7, 2000, made the advance VAT return on February 3, 1999 for the month of December 1998, which did not include any sales but an input tax surplus in the amount of S 487,523.00. This advance VAT return was made personally by the administrator, as managing director of the company P. signed, and at the same time an application was made for repayment to an account subsequently named in a letter dated February 10, 1999. This repayment of the input tax credit was then actually made on February 23, 1999 with an amount of S 487,523.00.
If the bw. States in the present appeal that there was a corresponding lease agreement with regard to half of the property G. on which the input tax deduction was based when he took over his management activity, then it must be stated that actually on December 15, 1998 between Company P., represented by the previous managing directors F. and P., a relevant rental agreement (evident from the files in the tax file) has been concluded.
In the oral hearing before the appeals panel, the bw. Was able to credibly demonstrate that, on the basis of the rental contract concluded by previous managing director F., the tenant P. actually used the apartment Top B in G. until the factual termination of his management activity on 13.6. Lived in 2000. However, the tenant P. has not made any rental payments, so that after approx. 8-10 months under legal pressure from Dr. Z. has moved out again. Also, due to the factual expansion of the basis for decision-making in the context of the second-instance appeal procedure, it can be assumed that the administrator did not take any measures in the direction of the immediate sale of the Top B property in G. as part of his managerial function. Rather, it could be credibly demonstrated by the Bw. That a contract variant was negotiated with tenant P., which should grant an option right to purchase the rental property after ten years and the company B. was involved in financing the option money.
Based on these factual findings, in the opinion of the Appeals Senate, tax evasion in accordance with Section 33 (2) (a) FinStrG through knowingly unlawful assertion of the input tax credit for December 1998 in the amount of S 487,523.00 cannot be assumed. In the oral hearing before the appeal panel, the guard was also able to show that at the time the input tax was asserted for the property Top B in G. he assumed that the rental was subject to sales tax and entitled to input tax deduction. Neither the first-instance tax proceedings nor the financial criminal proceedings brought any contrary evidence to light.
It was therefore necessary to cease financial criminal proceedings in accordance with §§ 136, 157 FinStrG regarding point 1) of the disputed verdict of the ruling panel.
Regarding the conviction of the rulings panel with regard to point 2) of the contested decision for evading advance VAT payments for the months of October 1997 and October to December 1998 as a taxable person, it must be stated that the decision of the rulings panel in this regard was not contested and also by the appeals panel There is no doubt about the factual existence of the offense because of the confessional justification of the Bw.
Due to the granting of the appeal resolution to point 1) of the contested decision of the rulings panel, the fine had to be reassessed. Taking into account the additional extenuating reason of the permanent justification of the Bw., The now € 2000.00 fine and the corresponding substitute custodial sentence of 5 days appear to be appropriate to the perpetrator and guilty.
With regard to the partial discontinuation, the statement about liability according to Section 28 (1) FinStrG of the subsidiary company P was also to be repealed.
In accordance with Section 185 (1) (a) FinStrG, the costs of the financial criminal proceedings had to be redefined at ten percent of the fine.
It was therefore to be decided according to the ruling.
According to Section 164 FinStrG, no further ordinary legal remedy is permitted against this decision. However, you have the right to lodge a complaint against this decision within six weeks of its delivery to the Administrative Court and / or the Constitutional Court. The complaint to the Constitutional Court must be signed by a lawyer, apart from the exceptions specified by law. The complaint to the Higher Administrative Court must be signed by a lawyer or an auditor - apart from the exceptions specified by law.
According to § 169 FinStrG, the official commissioner is also granted the right to lodge a complaint with the administrative court.
Request for payment
The fine, the value replacement penalty and the costs of the financial criminal proceedings are due in accordance with Section 171 (1) and Section 185 (4) FinStrG within one month of this decision becoming final and to be paid using a separate payment slip to the postal savings bank account 5.504.288 of the Neunkirchen tax office, otherwise, foreclosure would be carried out and if the fine or the value replacement penalty were uncollectible, the replacement custodial penalty would have to be carried out.
Vienna, May 20, 2003
- Published in Findok on:
- affected standards:
- Financial criminal law procedural law
- VAT credit, input tax deduction, input tax surplus, advance VAT return, rental, sale
- System data:
- Findok no: 4268.1, taken on: 07/30/2003 10:38:52 AM, last changed on: 03/24/2006, document ID: 8c3bdfdd-d616-4725-8aa5-bffcf7f7f312, segment ID: 7a7fc769-e531-4de0- 9888-04a52ce4d66b
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