A distinction can be drawn between the seizure of items for evidentiary purposes under Section 94(2) StPO and seizure to secure a future confiscation order or to render an item unusable under Sections 111b et seq. StPO.

Where an item is in a person’s possession and that person does not hand it over voluntarily, seizure is required under Section 94(2) StPO. In tax criminal proceedings, this can include the seizure of documents such as invoices and bank statements, as well as data storage devices. However, under Section 97(1) StPO, certain items are protected from seizure, including:

• Written communications between the accused and a person entitled to refuse to testify
• Records made by lawyers, notaries, auditors, tax advisors, or others in a comparable position of trust and confidentiality (see Section 53(1) sentence 1 nos. 1 to 3b StPO)
• Other items, including examination findings, covered by the right to refuse testimony of the persons named in Section 53(1) sentence 1 nos. 1 to 3b StPO

An item may also be seized under Section 111b StPO to secure future enforcement where there are reasonable grounds to believe that the requirements for confiscation under Sections 73 et seq. of the Criminal Code (StGB) are met, or that the item should be rendered unusable.

Asset freezing under Section 111e StPO is a separate measure from seizure under Section 111b StPO, intended to secure or enable a later confiscation of the equivalent value. Both measures initially share the same requirements:

• An expectation that confiscation will be ordered
• A need to secure the assets
• Proportionality of the measure
• The exercise of discretion by the competent authority

The key difference between seizure and asset freezing lies in what is being secured. While Section 111b StPO secures the confiscation of a specific item through seizure, Section 111e StPO secures confiscation of an equivalent monetary value. To do this, the assets of the person or business concerned are frozen up to the amount expected to be confiscated at a later date. Asset freezing can extend to both movable and immovable assets, meaning it can apply not only to bank accounts but also, for example, to valuables.

In addition to asset freezing, the tax authority may order a property attachment, referred to under German law as dinglicher Arrest, in tax criminal proceedings. Under Section 324(1) AO, the tax authority responsible for assessing the tax may order the attachment of movable or immovable assets to secure enforcement of a monetary claim where:

• There is reason to fear that collection would otherwise be frustrated or made significantly more difficult, or
• The claim has not yet been finally determined, or is conditional or not yet due

A property attachment can be ordered either as an alternative to, or alongside, asset freezing under Section 111e StPO (Section 111h(2) sentence 2 StPO). Asset freezing and seizure are ordered by the court (Section 111j(1) sentence 1 StPO), or, where there is imminent danger, by the public prosecutor’s office (Section 111j(1) sentence 2 StPO). A property attachment under the Fiscal Code, by contrast, can be ordered directly by the tax authority, without the need for a court-issued enforcement order. However, the authority may enforce the attachment only within a statutory deadline.

If your business is subject to a measure such as asset freezing, property attachment, seizure, or a search, you should contact a lawyer immediately. Our tax criminal law team brings together lawyers for criminal law and for tax law, who work hand in hand on your case, including cases involving foreign companies and cross-border corporate structures. As soon as a precautionary or other measure is carried out by the tax office or another authority, our team is here to support you. We defend your rights, explain the legal remedies available to you, and advise you on matters of tax law, tax criminal law, and corporate tax law. Contact us today to learn more about our services.