If the signs are not deceptive, proceedings in connection with the so-called cum / ex scandal are likely to keep the German criminal justice system busy for many years to come. The subsequent extension of the criminal statute of limitations to 42.5 (!) Years through the Annual Tax Act 2020 makes it seem conceivable that even public prosecutors, judges or lawyers who are not yet born will have the chance to deal with relevant cases professionally deal. The first decision by the Federal Court of Justice in a corresponding procedure was therefore expected with all the greater tension.

The judgment announced on July 28, 2021, the written reasoning of which was sent to the parties to the proceedings on September 23, 2021, is less surprising in its result than in its sixty-page reasoning. The fact that participation in so-called cum / ex transactions can constitute an offense of criminal tax evasion is likely to be disputed by a handful of unteachable people, especially in view of the "multiple reimbursements" carried out after 2009. In view of the very different constellations in which such transactions were carried out, it was therefore all the more urgent to separate the area of ​​criminal behavior as precisely as possible from non-criminal behavior - possibly “only” non-compliant with tax law. But this is precisely what the judgment did not succeed in doing. Because the 1.Criminal Senate does not recognize cum / ex transactions for what they were, namely abuse, but bases its legal assessment solely on the fact that even with the simple application of the regulations of (objective) tax law, a crediting or reimbursement of capital gains tax for domestic buyers is ruled out.

Such an approach, which dispenses with considerations of abuse, is not convincing because it completely suppresses the possibility that a domestic buyer does not even know that his buy order is due to a corresponding sell order from a short seller. It not only contradicts the fundamental conditions of functioning stock exchange trading to burden a security buyer with a burden of research with regard to processes that lie outside his sphere of influence. Rather, it also overstretched the objective fact of tax evasion in an inadmissible way, expanding it to include undoubtedly lawful behavior and only eliminating criminal liability in the following “intent” level. An understanding of the rules of tax law that is unable toCapturing the case of the “bona fide” purchaser therefore necessarily remains in deficit.

On the other hand, the path taken by the Senate cannot be justified with the consideration made in the judgment itself that a case of “good faith” acquisition does not exist in the case to be decided, since, according to the findings of the Bonn Regional Court, short sales and the omission of a tax deduction The respective short seller or his custodian bank were known to all parties involved (BGH, ruling of July 28, 2021 - 1 StR 519/20, margin no. 70). Admittedly, it is not far from the assumption that in all further criminal proceedings because of such transactions, a corresponding “good faith” on the part of the domestic buyer should not be given. However, this is not ruled out, and it would therefore be eagerly to be expected whether the Senate would stick to its “intentional solution” in such a case as well. But what is decisive isthat, given the lack of a clear and unambiguous legal regulation, it cannot be sufficient to base the intent of criminal tax evasion solely on the knowledge of the involvement of a short seller. Rather, a corresponding conviction presupposes the determination of an intention to abuse, which makes significantly higher demands on the existence of the subjective offense. By rejecting such a purely appropriate construction of abuse, the BGH, on the other hand, sets the prerequisites for criminal liability to a worryingly low level. A correspondingly poorly differentiated attribution of responsibility may do justice to populist simplifications. One could expect more from the eagerly awaited lead decision.to base the intent of criminal tax evasion solely on the knowledge of the involvement of a short seller. Rather, a corresponding conviction presupposes the determination of an intention to abuse, which makes significantly higher demands on the existence of the subjective offense. By rejecting such a purely appropriate construction of abuse, the BGH, on the other hand, sets the prerequisites for criminal liability to a worryingly low level. A correspondingly poorly differentiated attribution of responsibility may do justice to populist simplifications. One could expect more from the eagerly awaited lead decision.to base the intent of criminal tax evasion solely on the knowledge of the involvement of a short seller. Rather, a corresponding conviction presupposes the determination of an intention to abuse, which makes significantly higher demands on the existence of the subjective offense. By rejecting such a purely appropriate construction of abuse, the BGH, on the other hand, sets the prerequisites for criminal liability to a worryingly low level. A correspondingly poorly differentiated attribution of responsibility may do justice to populist simplifications. One could expect more from the eagerly awaited lead decision.Rather, a corresponding conviction presupposes the determination of an intention to abuse, which makes significantly higher demands on the existence of the subjective offense. By rejecting such a purely appropriate construction of abuse, the BGH, on the other hand, sets the prerequisites for criminal liability to a worryingly low level. A correspondingly poorly differentiated attribution of responsibility may do justice to populist simplifications. One could expect more from the eagerly awaited lead decision.Rather, a corresponding conviction presupposes the determination of an intention to abuse, which makes significantly higher demands on the existence of the subjective offense. By rejecting such a purely appropriate construction of abuse, the BGH, on the other hand, sets the prerequisites for criminal liability to a worryingly low level. A correspondingly poorly differentiated attribution of responsibility may do justice to populist simplifications. One could expect more from the eagerly awaited lead decision.A correspondingly poorly differentiated attribution of responsibility may do justice to populist simplifications. One could expect more from the eagerly awaited lead decision.A correspondingly poorly differentiated attribution of responsibility may do justice to populist simplifications. One could expect more from the eagerly awaited lead decision.

Attorney Prof. Dr.

Stefan Kirsch is the criminal defense attorney for an accused in cum / ex proceedings 

Keywords: decision, liability, hand, determination, bgh, tax evasion, simplifications, transactions, cum, construction, abuse, ex, tension., offense, existence