Anyone who pays employees “black” in whole or in part is betting significant legal risks. In practice this is how it works mostly not just about undeclared work in the general sense, but very much specifically about two criminal allegations: withheld and Embezzlement of wages according to Section 266a StGB and Tax evasion according to Section 370 AO. Customs expressly states points out that employers pay social security contributions and the must pay the correct amount of wage tax on their employees and that violations are punishable.

What What does “paying black” mean legally?

From “Paying black” is usually mentioned when employees do actually work, but the wages are not paid in whole or in part is properly recorded in the payroll. Are typical Cash payments “without invoice”, unreported hours, Sham statements with wages that are too low or an official one reported mini-job, although actually worked significantly more and is paid. The law to combat undeclared employment is linked to this Constellations when services or works are provided or can be carried out and be covered by social security or tax obligations are violated.

Withheld and embezzlement of wages according to Section 266a StGB

For Section 266a StGB is particularly important to companies. Then do it Anyone who pays social security contributions as an employer is punishable withheld. The text of the law expressly makes it clear that this with regard to the employee shares applies regardless of whether wages are actually paid. Already that Failure to pay the contributions owed can therefore be a criminal offence. In addition, the regulation also covers cases in which employers incorrect or incomplete statements to social security institutions Giving information or concealing significant facts in breach of duty and thereby withhold contributions. In the basic case there is a risk of a fine or imprisonment for up to five years.

Special Serious cases: When undeclared wages turn into massive criminal proceedings

In In particularly severe cases, the risk increases significantly. § 266a StGB then sees a prison sentence of six months to ten years before. According to the law, a particularly serious case occurs regularly for example, when contributions are made on a large scale from coarse Self-interest is withheld when fake or adulterated Receipts can be used or if the perpetrator is a member of a gang acts. Especially with systematically structured black wage models Double-entry bookkeeping, fictitious invoices or ongoing cash payments This stricter penalty framework can quickly become relevant.

Tax evasion according to § 370 AO: The second central accusation

Who Paying wages deliberately bypassing the payroll department is a risk often also the accusation of tax evasion according to Section 370 AO. According to this, anyone who consults the tax authorities or others is liable to prosecution Authorities are incorrect or incorrect about tax-relevant facts provides incomplete information or is ignorant of it in breach of duty and thereby reduce taxes. In the basic case there is a risk here too Fine or imprisonment of up to five years; in particular In severe cases, six months to ten years. The employer is also legally obliged to report the withheld or assumed income tax and to the business premises tax office to be discharged. Those who pay undeclared wages often do not injure themselves only in terms of social security law, but also at the same time payroll tax obligations.

Black Paying often means: two criminal offenses at once

For It is particularly important for affected companies that § 266a StGB and § 370 AO often stand parallel in the room. Who “black” employees paid, regularly saves both social security contributions and also income tax. This is exactly why there are investigations into undeclared wages often much more comprehensive than many entrepreneurs initially accept. It's not just about the original method of payment, but about payroll accounts, bookkeeping, working time records, False self-employment, subcontractor structures and possible Fake bills. Customs expressly describes undeclared work as a field in which taxes and social security contributions are avoided and that is prosecuted by the financial control of undeclared work (FKS).

Who is liable in the company?

In In practice, it is not just “the company” that is abstract unity, but often the focus is on the responsible people, such as managing directors, board members or others with human resources and Persons involved in payment decisions. Section 14 of the Criminal Code regulates that Criminal provisions also apply to representatives and those responsible can be applied when acting for a company. This is particularly the case with GmbHs in investigations into undeclared wages particularly relevant.

What Is there anything else threatening besides the punishment?

Besides Companies usually face significant fines or imprisonment additional demands. If undeclared wages are discovered, there are often no claims only criminal allegations in the room, but also Additional contributions claims, additional payroll tax claims and others financial consequences. Depending on the case, late payment surcharges, Interest, asset confiscation and significant economic damage added for the operation. That illegal and illegal work Employment to state taxes and social security Contributions are withdrawn by customs and the Federal Ministry of Finance expressly highlighted.

Typical Case constellations for black wages

In Similar constellations occur again and again in legal practice on: Employees are only partially officially registered, the rest the wages are paid in cash; Employees become mini-jobbers managed even though people are actually working full-time; alleged Subcontractors or freelancers actually replace regular ones workers; or fake bills are used to get cash to procure for undeclared wages. Such models can vary depending on Design in terms of social security law, tax law and at the same time be problematic under criminal law. Particularly risky it will happen if the structure is operated in an organized manner over a long period of time or documents are deliberately manipulated.

What do during a search, customs inspection or hearing?

Who as an entrepreneur a summons, a hearing form, a Customs inspection or even a search should be experienced Take the situation seriously. Develop investigations into undeclared wages often develop quickly and regularly affect a variety of people Documents, digital data and payment flows. Ignorant Information can make your own defense significantly more difficult. In In such cases it is usually crucial to check early on whether what specific allegations are being made, what time periods are affected and whether the investigations are based on Section 266a StGB, Section 370 AO or other crimes are supported. The customs FKS is straight for combating undeclared work and illegal employment responsible and carries out appropriate audits and investigations through.

You have received a summons or an audit for undeclared wages?

We will check for you which specific allegations are being made and which ones Documents are important now and what steps for companies, Managing directors and those responsible make sense.