So far, one could think that only smuggling and the evasion of entry or exit levies are predicate of- 
fence to ML in Austria, but that is not the full picture. In December 2010, an additional para 3 was 
added to $ 1 FinStrG, declaring that “all premeditative financial misdemeanours, which are punishable 
with a mandatory depravation of liberty of more than three years, are felonies in the sense of $ 17 para 
1 Criminal Code” * There are (only) two misdemeanours that are in scope of § 1 para 3 FinStrG: § 38a 
(financial misdemeanour committed by a gang or using violence) and § 39 (fraud on levies) FinStrG.* 
Once these conditions are met, the court may sentence the offender to a fine and additionally to im- 
prisonment of a period of time up to 3, 5 or 10 years, depending on the amount smuggled, evaded, 
defrauded or concealed.” The maximum sentence being of more than one year, it appears that the 
definition according to Art. 3 point (4) (f) of the 4^ AMLD seems to be met. 
  
The term levy covers both direct and indirect tax in Austria, including entry levy fraud and excise 
tax/V AT fraud in other member states of the EU ($ 2 para 1 lit. c FinStrG, under the condition that the 
requirements of $ 39 FinStrG are met). Financial misdemeanours according to $ 38a FinStrG include 
the cases of simple tax evasion (as defined in $ 33 FinStrG, covering both VAT and direct taxes) if 
committed by at least two cooperating ($ 11 FinStrG) members of the same gang which has to have at 
least three members (§ 38a para 1 lit. a FinStrG). Point 2 of the interpretive note to FATF recommen- 
  
dation 3 seems to be met. 
Should all these conditions explained above not be met, the FinStrG only protects taxes as defined in $ 
2 FinStrG, hence e.g. an evasion of German income tax committed in Austria is out of scope of $ 165 
Criminal Code, because the Austrian law, namely the FinStrG, does not punish the evasion of German 
  
income tax."' Point 5 of the interpretive note to FATF recommendation 3 seems not to be fully imple- 
mented by the Austrian Financial Criminal Act (FinStrG). 
  
%* BGBL I Nr. 104/2010 (NR: GP XXIV RV 874 AB 945 S. 85. BR: AB 8415 S. 790.), to be found at 
https://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA 2010 I 104/BGBLA 2010 I 104.pdf, accessed 
online on April 3, 2016: 
  
  
(3) Vorsátzliche Finanzvergehen, die mit einer zwingend zu verhängenden Freiheitsstrafe von mehr als drei 
Jahren bedroht sind, sind Verbrechen im Sinne des $ 17 Abs. 1 StGB.“ 
? For the sake of shortness of this text, the German version of §§ 38a and 39 can be found in Annex C below. 
? The legal construction of the offences being very complicated, the list of potential sanctions available from 
https://www.bmf.gv.at/steuern/fristen-verfahren/fsv-strafhoehe.html, accessed on April 3, 2016, is very helpful 
and can be found in German in Annex D below. 
* As explained by Prof. Dr. Jens Bülte, in his presentation on financial felonies als predicate offence to ML, (in 
German: ,Finanzverbrechen als Vortaten der Geldwáscherei^), given at the 17* conference on financial criminal 
law, Linz, Austria, on March 8, 2012. 
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