Volltext: Tax crime as predicate offence to money laundering

The limitation of the definition of "proceeds of crime" to asset components that the offender has either 
obtained himself through the offense or for its commission or if the value of the originally obtained or 
received assets are embodied in it leads to the following consequences? 
- The purely pecuniary advantage consisting of taxes not being paid is not received through the 
offence, but the wealth of the offender is not reduced by committing the tax crime. Such a 
“damnum non emergens” or “tax saving” is out of scope of the above definition of “proceed of 
- Its crucial to delineate the limit between tax savings and levies being credited: an asset com- 
ponent is proceed of a tax crime only when this tax crime leads to a credit entry on the levy 
account of the offender, e.g. a credit entry on input tax, a refund of taxes deducted at the 
source (revenue tax, capital yield tax), or refunds of prepaid taxes (income tax, corporate tax). 
The Swiss legislator seems to be aware of the above problems". In the dispatch of the draft law of 
December 13, 2013, the Swiss government admits that tax crimes as predicate offences to ML do not 
instantly generate proceed of crime at the very moment they are committed, but allow for illegal sav- 
ings on costs by the taxpayer”, hence “pecuniary advantages” seem to be covered by the law. The 
Swiss government further explains that it wants to make it clear that the tax crimes as predicate of- 
fences to ML to not contaminate the whole fortune of the taxpayer. Only those monies that have been 
avoided to be paid as tax can become the object of a following act of ML.* Should those monies no 
longer be identifiable, forfeiture according to Art. 70 Criminal Code is not possible.” 
In German Law, Art. 261 para 1 sentence 3 Criminal Code clearly states that "the 1* sentence shall 
apply in cases of tax evasion committed on a commercial basis or as a gang under section 370 of the 
Fiscal Code, to expenditure saved by virtue of the tax evasion, of unlawfully acquired tax repayments 
and allowances, and in cases under the 2" sentence no 3 the 1" sentence shall also apply to an object 
in relation to which fiscal charges have been evaded”. By doing so, German law covers the “pecuniary 
advantages” of qualified tax evasion. 
# As explained by Mag. Rainer Brandl, see footnote 91. 
As explained by Prof. Dr. René Matteotti, attorney-at-law with the law firm Baker & McKenzie, Zürich, dur- 
ing his presentation entitled “Steuerdelikte als Vortaten der Geldwäscherei in der Schweiz” given at the 12" 
AML/CFT Conference in Zürich entitled ^ Aktuelle Entwicklungen in der Bekámpfung der Geldwáscherei und 
der Terrorismusfinanzierung”, organised by Kunz Compliance, Bern, www.compliance.ch. 
°° Official Federal Gazette (Bundesblatt) 2014, p. 605 et seq., esp. p. 626. 
% Official Federal Gazette (Bundesblatt) 2014, p. 605 et seq., esp. p. 626. 
?' Official Federal Gazette (Bundesblatt) 2014, p. 605 et seq., esp. p. 626/627. 


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