Anyone who does not report their taxes to the tax authorities on time or correctly may be imposed a default or misdemeanor fine. When should you fear the higher misdemeanor fine and when will the inspector only impose a default fine?
Default fine
A default fine falls under the light penalty law. You could compare behavior for which a default fine is imposed with violations in criminal law compared to crimes. To impose a default penalty, it is not required that the taxpayer must have committed gross negligence on the part of the conduct.
A default penalty is imposed for the following behaviors, among others:
- Article 67a AWR: if the tax return is not filed within the deadline, a default penalty will be imposed by the inspector.
- Article 67b paragraph 1 AWR: if the tax return is not filed within the period for filing a tax return, a default penalty will be imposed by the inspector.
- Article 67b paragraph 2 AWR: if the payroll tax return is not filed within the deadline, or if it is filed incorrectly or incompletely, the inspector will impose a default penalty.
- Article 67c AWR: in the event of default in payment of tax returns, the inspector will impose a default penalty.
Misdemeanor fine
A misdemeanor fine falls under heavy fines. Behavior for which a misdemeanor fine is imposed can be compared to crimes in criminal law. Misdemeanor fines can only be imposed if there is gross negligence or intent. Gross negligence is a degree of culpability bordering on intent and also includes gross negligence. This could include reprehensible carelessness or serious negligence. In the case of gross negligence, the taxpayer should or could reasonably have understood that his behavior could result in too little tax being levied or paid. Intention is a degree higher than gross negligence and can be described as the knowing act or omission, leading to the failure to levy or pay tax or to fail to pay it within the prescribed period. Intent also includes conditional intent. Conditional intent is the knowing and conscious acceptance of the significant chance that an act or omission will result in too little tax being or can be levied or not being paid or not being paid within the term.
The inspector will impose a misdemeanor fine for the following conduct:
- Article 67d AWR: a misdemeanor fine is imposed if a tax return has been deliberately filed incorrectly or incompletely.
- Article 67e AWR: if the taxpayer’s intent or gross negligence is due to the fact that the assessment has been set at too low an amount or otherwise too little tax has been levied, an administrative fine will be imposed by the inspector at the same time as the additional assessment.
- Article 67f AWR: if the tax has not been paid or has not been paid in part due to intent or gross negligence on the part of the taxpayer, the inspector will impose a penalty fine at the same time as determining the additional tax assessment.
Ne bis idem
You can only be fined once for one and the same offense. If you have been imposed a default fine, no misdemeanor fine or vice versa can be imposed. The principle of ne bis in idem precludes a second fine. According to the ne bis in idem principle, you can only be punished once for an offense.
Una via
According to the una via principle, two different persecutions cannot be piled up. Once you have been fined, you cannot be prosecuted again for the same offense, and vice versa.