02. September 2026
Release from confidentiality?
The duty of confidentiality for tax advisors derives from Section 57 Paragraph 1 of the German Tax Advisory Act (StBerG) under professional law and from Section 203 Paragraph 1 No. 3 of the German Criminal Code (StGB) under criminal law.
If tax evasion proceedings are initiated against a client of the tax advisor, the question of whether a release from confidentiality is required may arise in various situations:
- Tax advisor discovers client's tax evasion (without reporting)
According to the case law of the German Federal Court of Justice (BGH), if tax evasion is subsequently discovered, the tax advisor has no independent obligation to correct the tax return under Section 153 of the German Fiscal Code (AO). Filing a separate report with the tax office would constitute a breach of confidentiality.
- Initiation of Tax Criminal Proceedings Against the Client
If tax criminal proceedings are initiated against the client, the tax advisor will often be considered as a witness. In this case, the comprehensive right to refuse to testify applies pursuant to Section 53 Paragraph 1 No. 3 of the German Code of Criminal Procedure (StPO). Making a statement without a prior release from confidentiality by the client carries the risk of criminal liability under Section 203 of the German Criminal Code (StGB) and a breach of professional conduct.
3. Search and Seizure of Files at the Tax Advisor's Office
The tax advisor's files (confidential documents, correspondence, meeting notes) generally fall within the scope of protection of the confidential relationship. The exemption from seizure under Section 97 of the German Code of Criminal Procedure (StPO) is contingent upon the right to refuse to testify and the duty of confidentiality. If the client has released the client from confidentiality, the exemption from seizure no longer applies, and the files can be seized.
4. Tax Advisors as (Co-)Perpetrators or Participants in Tax Evasion
In cases where a tax advisor actively participates in a client's tax evasion, in addition to breach of confidentiality (§ 203 of the German Criminal Code), aiding and abetting tax evasion is also a possible charge.
5. Recommendation for Action
Without an explicit or implied release from confidentiality by the client, advisors are generally prohibited from disclosing any client-related secrets; this applies particularly in the context of tax evasion proceedings.
Thorough documentation (date, scope, purpose of the release) is essential in the event of a professional or criminal investigation to prove that a disclosure was not "unauthorized."