New Tax Administrative Offence
The BFG further classified the use of such documents as a continuing offence, which has significant implications for the limitation period applicable to this tax administrative offence.
The relevant provision of the Austrian Fiscal Criminal Code (Finanzstrafgesetz) covers situations in which documents are altered, false or inaccurate documents are created, or such documents are used with the intent of simulating a business transaction or concealing its true substance. Violations may result in fines of up to EUR 100,000. The provision is therefore aimed in particular at the creation and use of fictitious invoices and cover invoices.
In the case before the BFG, a motor vehicle dealer independently modified several supplier invoices issued to him by inserting fictitious, higher purchase prices. As a result, he understated VAT liabilities through excessive input VAT deductions. The dealer was fined EUR 20,000 for both tax evasion and the related tax administrative offence. He challenged the penalty, but the BFG upheld the decision.
Continuing Offence
The BFG also held that the tax administrative offence constitutes a continuing offence that persists until the falsified invoice is removed from the accounting records.
For continuing offences, the limitation period begins only once the offence has ceased. According to the BFG, this means that the statutory limitation period starts only when the relevant invoice is removed from the bookkeeping records. As long as such a document remains in the accounting records, the limitation period does not begin to run.
This may also affect other fiscal offences that have already been committed, as these may, under certain circumstances, likewise remain outside the scope of the limitation period.
Recommendation
Not every incorrect invoice automatically constitutes such a tax administrative offence. However, where there are doubts regarding the accuracy or authenticity of documents, prompt clarification is essential. In cases involving potential irregularities, it is advisable to consult a tax or fiscal criminal law adviser at an early stage.
Where appropriate, such a tax administrative offence may also be remedied through a voluntary disclosure (Selbstanzeige).