There are terms that sound like ethical behaviour and insight, but upon closer inspection turn out to be mere mimicry of ethical insight. The self-disclosure that absolves one of punishment, which is currently at the centre of a surprisingly one-sided debate within the framework of the „Action Plan Against Tax Crime,“ undoubtedly falls into this category.
Those who indulge in the questionable pleasure of opening the German Fiscal Code and stumbling upon § 371 AO, discover a criminal law anomaly in the legal jungle: voluntary disclosure in cases of tax evasion. An instrument that promises profound repentance, but in practice often only serves as a tool for those who have long profited from their own dishonesty. However, those who confess only when they believe they sense the breath of the criminal prosecution authorities are not acting ethically; they are calculating.
The opposition to reforming or abolishing the voluntary disclosure scheme often argues that voluntary disclosure is fiscally necessary and generates significant additional tax revenue. For this reason alone, it is therefore beneficial to society as a whole.
On closer inspection, this argument is based on a remarkably sparse data foundation. What is suggested as an empirically secured necessity turns out, rather, to be an assumption whose robustness has so far scarcely been convincingly proven. What is essentially statistically demonstrable is only that the number of voluntary disclosures has significantly decreased since their introduction. There are no current, reliable statistics on actual additional tax revenue as a result of voluntary disclosures.
Against this backdrop, the frequently cited necessity of voluntary disclosure as one of the „most important“ investigative tools for law enforcement agencies also appears questionable. Nationwide in 2024, 8,032 tax evasion proceedings were initiated based on investigations by the tax investigation department. This is more of an indication that effective investigation does not depend on voluntary disclosures. Surrender by the investigative authorities looks different, at least.
The myth of voluntary disclosure as an indispensable instrument for tax investigation and the tax authorities thus joins a series of economic narratives that stubbornly persist, despite lacking a solid empirical basis (but isn't that precisely the appeal of fairy tales?). People talk about wealth taxes that inevitably trigger an exodus of millionaires and billionaires, about the lone „grandma“ who loses her family home due to tax burdens, or about falling corporate tax rates that invariably generate growth.
At the same time, the debate often fails to mention that voluntary disclosures are by no means resource-efficient for the administration. Voluntary disclosures tie up personnel and time resources. A voluntary disclosure regularly leads to the initiation of tax penalty proceedings (due to the initial suspicion that is thereby implied). Not infrequently, initially excessive estimates are made, which are then only made concrete. Every voluntary disclosure must necessarily be checked for its effectiveness. This is not a superficial check, but rather complex legal work that requires time and personnel. A mere rubber-stamping of the voluntary disclosure is far from that reality.
It's also striking who is defending this instrument with particular vehemence. The overlap between proponents of criminalising fare evasion and defenders of voluntary disclosure is surprisingly large. This may be a coincidence, but it doesn't have to be.
Rather, a broader line of debate culture is emerging in criminal law as well as in other societal spheres. We observe a society that reacts harshly downwards while showing understanding and room for manoeuvre upwards.
For example, while driving without a ticket is prosecuted as an offence, which often affects those who cannot afford mobility and in the worst case leads to a custodial sentence, voluntary disclosure opens up an elegant and discreet way back to impunity for those who can afford the costs of its preparation (we are talking about legal advice fees, which are sometimes very high). Legality and justice visibly diverge here.
The debate surrounding voluntary disclosure is therefore not a niche discussion within tax criminal law, but rather an expression of an apparent societal structural imbalance. An anomaly exists in economic criminal law that allows for the acquisition of a personal ground for the annulment of punishment through back-payment and a fee. One searches in vain for comparable preferential treatment in classical offences. It is thus easily forgotten that classical mechanisms, such as withdrawal at the attempt stage, are already available to tax evaders today to escape punishment.
Therefore, fundamental questions must be asked in the debate.
Which social groups are disproportionately affected by tax evasion? And why do other criminal offences, with different perpetrator milieus, not experience comparable, indeed purchasable, leniency? The answers to these questions lead to an uncomfortable conclusion: voluntary disclosure is not a neutral instrument, but rather reproduces social inequalities in the form of a norm.
Anyone who is genuinely concerned with the state budget, a fair distribution of resources, and a consistent penal system should therefore set different priorities than railing against the abolition of voluntary disclosure: drying up tax havens, introducing an offensive and viable whistleblower culture, and a consistent approach, supported by personnel and technology, against abusive tax avoidance schemes. Otherwise, the question remains as to who or what is actually being defended here: the „fiscal advantages“ of voluntary disclosure, or perhaps even a business model?
The potential abolition or reform of voluntary disclosure would send a strong signal for the rule of law, whose leniency is neither for sale in classical nor in economic criminal law.
A viable rule of law is not measured by privileged exceptions, but by the consistent realisation of equality before the law.