Volltext: Tax crime as predicate offence to money laundering

3.3 Offshore tax crime to be included as onshore predicate offence 
Another elephant in the room is the difficult task that every Money Laundering Reporting Officer 
(MLRO) of every reporting entity, every analyst of every FIU, every prosecutor and every judge 
working on ML cases has to learn at least the core definitions of tax crime in other countries, as soon 
as the case is a cross-border situation. In many countries, this is rather the rule than the exception, 
especially in the financial centres. 
This task will cause a high demand for additional resources in an industry with profit margins melting 
like snow in the sun. While the latter is no excuse, it can be a reason why some national AML/CFT 
regimes are less effective, due to a lack of resources. Due to the very high frequency of amendments in 
tax law^5, training people in tax law is probably one of the most time- and resource-consuming train- 
ings that exist. This applies to both the private and the public sector. 
An example could maybe make it easier to understand how difficult tax crimes are to be assessed. 
What is the legal situation in Austria, if a German dentist makes transfers on his bank account in Aus- 
tria using money that he has received from his patients in Germany but chose not to declare in his tax 
return in Germany? In Austria, the evasion of German income tax is basically regarded as a simple 
saving of expenses, hence the benefit from not paying the German income tax is out of scope of $ 165 
Austrian Criminal Code. In order to calculate the limits relevant according to Austrian financial crimi- 
nal law for the decision whether this act is exceptionally a predicate offence to ML, one would have to 
know the tax rate of the dentist in Germany. To make it more complicated, the Austrian reporting en- 
tity would not be allowed to sum up all income tax evaded over the years but would have to calculate 
the amount of tax evaded for every single tax period separately. In addition, it is very difficult for any 
compliance officer in Austria to detect further taxes avoided in Germany, e.g. on foreign income on 
Even if certain supervisory authorities try to make this problem easier for the private sector to solve, 
the additional administrative charge remains significant. The Swiss Financial Market Supervisory 
Authority FINMA has allowed in its own AML-Ordinance for the financial intermediaries to disregard 
the individual tax factors of their clients and instead base their risk assessment on the maximum tax 
° It seems to be difficult to find another field of law where the law changes as frequently as in tax law. 
? As explained by Mag. Rainer Brandl, attorney-at-law with the law firm LeitnerLeitner, Linz/Wien/Zürich, 
during his presentation entitled “Steuerdelikte als Vortaten für Geldwäsche in Osterreich” given at the 12" 
AML/CFT Conference in Zürich entitled “ Aktuelle Entwicklungen in der Bekämpfung der Geldwäscherei und 
der Terrorismusfinanzierung”, organised by Kunz Compliance, Bern, www.compliance.ch. 


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