Tobacco Tax Evasion in Germany – Criminal Tax Law
Definition and Legal Significance
Tobacco tax evasion covers all actions by which tobacco products enter the market while bypassing tax regulations. This includes, in particular, the commercial transport or sale of cigarettes and other tobacco goods without paying the legally required excise duty.
If you are confronted with allegations of tax evasion, VAT fraud or other tax-related offences in Germany – including situations comparable to those described on this page – you should promptly consult our English-speaking criminal defence solicitors in Frankfurt with particular expertise in tax evasion and criminal tax law and, where appropriate, also in white-collar crime and corporate investigations.
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.
Typical Causes
- • Illegal import of large quantities (smuggling)
- • Use of counterfeit or unvalidated tax bands
- • Omission or falsification of tax declarations
- • Sale of untaxed products on black markets
Consequences
- • Substantial tax losses to the state
- • Market distortion and unfair competition
- • Criminal penalties for offenders
Tobacco Tax System and Obligations
Tax Stamps Requirement
All tobacco products subject to German excise tax must carry official tax stamps (banderoles).
- • Stamps are issued by the Main Customs Office Bielefeld (§ 32 TabStV).
- • Manufacturers, importers and authorised distributors may obtain them (§ 17 TabStG).
- • Tax stamps must be affixed and invalidated before tax liability arises.
When Does Tobacco Tax Arise?
- • Removal from a tax warehouse
- • Production without licence
- • Irregularities during suspension of duty (e.g. smuggling)
- • Movement from another EU country for commercial purposes (§§ 15, 23 TabStG)
Tax Declaration Duties
- • Tax return upon removal from warehouse (§ 17 II TabStG)
- • Tax declaration when moving goods commercially from EU countries (§ 23 I TabStG)
Common Forms of Tobacco Tax Evasion
1. Absence of Tax Stamps
Selling or holding unstamped tobacco products fulfils the offence under § 370 (1) no. 3 AO.
2. Omitted Tax Declaration
Failure to file a declaration for tobacco brought in from other EU countries is punishable under § 370 (1) no. 2 AO.
3. Online Trade and Smuggling
- • Cross-border mail-order trade is subject to excise duty.
- • Private individuals may import for personal use only (§ 22 TabStG).
- • Smuggling leads to confiscation and destruction of goods.
Who Is Liable for Tobacco Tax?
- • Manufacturers and importers
- • Recipients or holders of tobacco products imported for business (§ 23 TabStG)
- • Anyone holding unstamped goods for commercial use must immediately file a declaration
Penalties for Tobacco Tax Evasion
Legal Basis
- • Fine or imprisonment up to 5 years (§ 370 AO)
- • Up to 10 years in serious cases
- • Administrative offence for quantities under 1,000 cigarettes (§ 37 TabStG)
- • Seizure and confiscation of untaxed tobacco (§ 215 AO)
- • Ancillary sanctions: withdrawal of business licence, tax reassessments
Examples of Aggravated Cases
- • Large-scale tax evasion
- • Commercial or organised operations
- • Use of counterfeit tax stamps
Customs and EU-Specific Rules
At EU internal borders, no customs duty applies, but excise obligations remain. Goods must be declared and properly stamped. Non-compliance leads to immediate seizure and criminal proceedings.
Tax Rate and Retail Price Calculation
- • Before 2022: €0.0982 per piece + 21.69% of retail price
- • From 2026: €0.1228 per piece + 19.84% of retail price
- • Minimum tax: 100% of total tax on weighted average price
The retail price is set by the manufacturer/importer. For counterfeit products, the official price applies, not the black-market price.
Completion of the Offence
The crime is complete once unstamped tobacco products enter the market. For omitted declarations, completion occurs when tax would have been assessed if properly filed.
Special Cases and Grey Areas
In practice, legal uncertainty often arises over whether goods are imported for private or commercial use. Overlaps between offences (§ 370 AO, § 37 TabStG) must be assessed precisely, especially where tax evasion coincides with tax receiving offences.
FAQ: Tobacco Tax Evasion and Cigarette Smuggling
What constitutes tobacco tax evasion?
Importing, selling or possessing untaxed tobacco products (e.g. cigarettes) without tax stamps, without declaration or through smuggling – punishable by fine or imprisonment (§ 370 AO).
Who is liable for the tax?
Manufacturers, importers, recipients and holders of untaxed goods intended for commercial purposes (§ 23 TabStG).
Is small-scale smuggling always criminal?
Quantities below 1,000 cigarettes may constitute an administrative offence (§ 37 TabStG). Larger or commercial cases are criminal (§ 370 AO).
How is the tax calculated?
Combination of specific (per-piece) and ad valorem (value-based) tax, plus a minimum tax based on official retail prices.
What to do in case of search or seizure?
Remain silent, contact a defence lawyer immediately, secure seizure records and seek expert tax crime defence.
Contact our Criminal Tax Lawyers in Frankfurt
Contact us – your English-speaking criminal tax lawyers in Frankfurt and throughout Germany:
- • Dr. Caroline Jacob, Lawyer, Specialist in Criminal Law
- • Frank M. Peter, Lawyer, Specialist in Criminal Law
- • Of Counsel: Prof. Dr. Frank Peter Schuster
- • Cooperation Partner: Tax Consultant and Former Tax Investigator Frank Wehrheim
Buchert Jacob Peter has been based in Frankfurt am Main for over 25 years, providing nationwide defence in tax crime and white-collar cases.
Phone: +49 69 710 33 330
Email: kanzlei@dr-buchert.de
More on this topic:
Tax Criminal Law |
Criminal Defence |
White-Collar Crime |
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