No extension of mutual assistance for fiscal offences
Silvia Hunziker
Following its decision not to revise the law on fiscal offences, the Federal Council has also decided not to extend mutual assistance in fiscal offences. In particular, it would put the Swiss tax authorities at a disadvantage compared to foreign tax authorities. The Federal Council took this decision at its meeting on 29 August 2018.
In 2009, the Federal Council decided to extend mutual legal assistance to fiscal offences and to align it with administrative assistance in tax matters. In 2012, it proposed to harmonise international cooperation in the area of mutual legal assistance and administrative assistance by amending the Mutual Legal Assistance Act and adopting the relevant additional protocols of the Council of Europe (without reservations). Accordingly, Switzerland would now also provide mutual assistance in cases of tax evasion.
However, the 2012 proposal was viewed critically by a majority in the consultation process. In particular, it was argued that it prejudges the revision of the criminal tax law. The Federal Council therefore decided in 2013 to postpone the proposal and coordinate it with the revision of the criminal tax law. At the end of 2017, the Federal Council definitely waived the revision of the law on fiscal offences.
In its meeting on 29 August 2018, the Federal Council has now decided to waive the extension of mutual assistance in fiscal offences as well. In particular, it considers the cost of the revision of the law to be disproportionate in comparison with the revenue. Bank data transmitted within the scope of administrative assistance proceedings or the automatic exchange of information may also be used abroad in proceedings for tax fraud and tax evasion. As things stand at present, it can therefore be assumed that there will be relatively few requests for mutual assistance in fiscal matters to Switzerland.
Furthermore, in mutual legal assistance proceedings, only measures in favour of a foreign authority may be ordered that are permissible under Swiss law, in particular the Code of Criminal Procedure and the Federal Act on Administrative Criminal Law. An extension of mutual assistance in fiscal offences would deviate from this principle after the waiver of the revision of the criminal tax law because it would put Swiss tax authorities at a disadvantage compared to foreign tax authorities: they would have to hand over bank data to the foreign country which they could not access in domestic tax proceedings.
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