Advisor Liability – Cum-Ex – Criminal Tax Law
Cum-Ex Proceedings: Criminal Liability of Advisors and Banks
Introduction
In recent years, German courts have handed down a series of decisions on Cum-Ex transactions. A current case once again shows that not only banks and their managers but also professional advisors can come under scrutiny by criminal courts. The Regional Court of Frankfurt am Main held that tax advisors may be criminally liable as aiders and abettors to tax evasion if their opinions or memoranda encourage Cum-Ex actors to proceed.
Our specialist criminal defence lawyers at Buchert Jacob Peter in Frankfurt explain what this means for advisors, banks and practice.
If you are under investigation in Germany for white-collar or corporate crime – for example in connection with the conduct described on this page – you should involve our English-speaking criminal defence solicitors in Frankfurt at an early stage, with particular experience in white-collar and corporate crime defence and, where relevant, also in tax evasion and criminal tax law.
For a confidential initial assessment of your situation and the development of a tailored defence strategy, you can reach us on +49 69 710 33 330 or by email at kanzlei@dr-buchert.de.
Background: Tax Evasion in Cum-Ex Deals
In the cases at issue, the defendants operated under the so-called “German pair” strategy. The objective was to obtain multiple refunds of capital gains tax around the dividend record date, even though such tax had not actually been withheld and paid.
- Bank managers were convicted of joint tax evasion.
- Advisors who produced supportive opinions facilitated the offences and thus committed aiding and abetting.
For an overview of relevant offence categories and defence options, see our pages on white-collar and fraud defence, tax evasion and our dedicated page on Cum-Ex / Cum-Cum matters.
Criminal Liability of Advisors in Cum-Ex – In Depth
Legal Basis
Advisor liability in the Cum-Ex context typically arises under Section 27 of the German Criminal Code (aiding and abetting). While the principal offenders commit tax evasion under Section 370 of the Fiscal Code by submitting false returns or claiming unlawful refunds, advisors who provide favourable opinions, legal theories or tax structures may contribute to the offence and thus be liable as accessories.
The Federal Court of Justice has clarified that even profession-typical activities—such as issuing opinions or providing legal/tax advice—can amount to aiding and abetting where they are knowingly used to facilitate a criminal offence.
Case Law on Profession-Typical Acts
- Neutrality only in exceptional cases: Lawyers and tax advisors cannot assume their work is automatically “neutral”.
- Knowledge of the criminal purpose: If the advisor knows their input is used solely to implement an offence, any neutrality is lost.
- Alignment with perpetrators: Downplaying risks or obscuring facts can amount to aligning with the offenders.
Cum-Ex-Specific Decisions (selected)
- LG Bonn (2020): Tax lawyers aided and abetted by designing and endorsing unlawful structures.
- LG Frankfurt (2024): Conviction of a lawyer whose “courtesy opinions” materially enabled the transactions.
- BGH (2021): No crediting of capital gains tax is permitted without prior withholding at source.
(These principles are regularly discussed in German criminal procedure; for context see our guide to the criminal process and our practice areas.)
Key Takeaways for Advisory Practice
- “Courtesy opinions” are high-risk and are frequently assessed as aiding and abetting.
- Awareness of a Cum-Ex structure and contribution to the plan can suffice for accessory liability.
- Fees may be seized as proceeds via confiscation orders.
- Professional consequences can include disciplinary measures up to loss of licence.
What This Means for Clients and Advisors
Clients should note: reliance on advisors does not remove their own responsibility. At the same time, advisors can quickly become the focus of investigations. Our Frankfurt team defends individuals and companies facing Cum-Ex investigations as well as advisors in criminal tax matters. For immediate assistance, contact our criminal defence team or learn more about our general criminal defence services.
Confiscation and Other Criminal Consequences
In addition to convictions, courts frequently order confiscation of benefits obtained through Cum-Ex. This can also affect advisors’ fees if they are considered proceeds or rewards of the offence. Effective defence requires early action within criminal proceedings to contest confiscation and alleged intent.
Practical Implications
- Profession-typical acts are not automatically shielded from criminal liability.
- “Courtesy opinions” in criminal tax law carry particular risk.
- Robust compliance and documentation are essential to prevent allegations.
- Where arrests or cross-border issues arise, experience in extradition and detention is crucial.
FAQ: Advisor Liability in Cum-Ex Cases
1) Can tax advisors or lawyers be criminally liable in Cum-Ex cases?
Yes—if their opinions or advice knowingly facilitate unlawful models, they may be liable for aiding and abetting. For tailored advice, speak to our English-speaking criminal law lawyers in Frankfurt.
2) Is a “courtesy opinion” enough for liability?
Often yes. Courts have repeatedly treated such opinions as aiding and abetting when they enable the scheme, especially where the illegal purpose is known.
3) What risks do advisors face beyond criminal penalties?
Alongside fines or imprisonment, disciplinary proceedings, loss of professional licence and confiscation of fees are possible.
4) How does Buchert Jacob Peter defend advisors?
Our defence lawyers scrutinise intent requirements, challenge the factual and legal basis of the allegations, and develop an individual defence strategy, including measures against confiscation.
5) Does dual criminality or EU law matter in these cases?
Yes—many Cum-Ex matters involve cross-border elements. Questions of EU law and, in some cases, European Arrest Warrants may arise; early specialist advice is essential.
6) I have received a request from the tax authorities—what should I do now?
Act promptly. Do not provide statements before consulting a specialist criminal defence lawyer. We support clients nationwide.
Criminal Law • Criminal Defence • Tax Evasion • Cum-Ex • Aiding and Abetting • Fraud • Confiscation
Contact Us – Your Criminal Defence Lawyers in Frankfurt and Nationwide
- Dr. Caroline Jacob, Specialist Lawyer for Criminal Law
- Frank M. Peter, Specialist Lawyer for Criminal Law
- Of Counsel: Prof. Dr. Frank Peter Schuster
- Cooperation Partner: Tax Consultant and former Tax Investigator Frank Wehrheim
Our law firm Buchert Jacob Peter has been working in criminal defence for over 25 years in Frankfurt am Main. We represent clients throughout Germany.
📞 Phone: +49 69 710 33 330
✉️ Email: kanzlei@dr-buchert.de
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