Amendment of legally binding rulings (revision and subsequent tax proceedings including differentiation from criminal tax proceedings)

Case 1: Subsequent tax and criminal tax proceedings Part 1

1. facts of the case

Marie Müller is the owner and Chairwoman of the Board of Directors of Treuhand AG, named after her and based in Langenthal. She is married to Ben Müller. Another member of the Board of Directors is lawyer and tax expert Jaël Stucki.

In August 2020, Marie Müller sold part of the shares in Marie Müller Treuhand AG to Jaël Stucki, leaving her with 46% of the share capital. Marie Müller sold a further 46% of the shares to Boring AG, which is controlled by Hans Weber. As a result, Marie Müller still held 8% of the share capital of Marie Müller Treuhand AG. She remained Chairman of the Board of Directors.

Two years later, a dispute arose between Marie Müller and the governing bodies of Boring AG, who claimed at the Annual General Meeting of Marie Müller Treuhand AG held in the summer of 2022 that they had acquired the remaining 8% of Marie Müller's shares and thus the majority of the shares. As a result, Marie Müller resigned from the Board of Directors on September 22, 2022. From this date at the latest, she no longer had access to the files of Marie Müller Treuhand AG.

Following an audit carried out at Marie Müller Treuhand AG, the tax authorities of the Canton of Bern opened subsequent and criminal tax proceedings against Marie and Ben Müller for the 2014-2019 tax years. It justified this by stating that Marie Müller had received benefits of monetary value from Marie Müller Treuhand AG for several years by withdrawing funds for private purposes through untruthful accounting by the company. In addition, she had clearly booked private expenses as business-related. After the tax authorities had requested and received documents from Marie Müller on several occasions, they prepared a provisional calculation of the fine and a list of the monetary benefits in question. In order to preserve the right to be heard, Marie Müller was able to comment on this, which she did in detail - now represented by lawyer Fred Huber.

Subsequently, on December 5, 2022, the tax authorities issued Marie and Ben Müller with a single fine ruling in the tax evasion proceedings for the tax years 2014-2019, taking partial account of the comments submitted, and at the same time a joint supplementary tax ruling for the same tax periods. A detailed list of the pecuniary benefits paid to Marie Müller formed part of both the fine and the supplementary tax ruling.

Questions

• Question 1: (Difference between subsequent and criminal tax proceedings)

From a procedural point of view, what are the main differences between a retrospective tax procedure and a criminal tax procedure?

• Question 2: (Difference with regard to the distribution of the burden of proof in subsequent or criminal tax proceedings)

What are the main differences with regard to the distribution of the burden of proof in post-tax and criminal tax proceedings?

• Question 3: (Effects in subsequent and criminal tax proceedings in the event of incorrect assessment by the tax authorities)

Variant: Marie Müller recorded costs of around CHF 1,500 for a business lunch in the accounts of Marie Müller Treuhand AG, stating that this was a small-scale birthday party to which Jaël Stucki had also been invited. The tax administration did not offset the costs of this birthday party with Marie Müller Treuhand AG, even though it was aware of the corresponding accounting documents and account details. What impact does this have on the subsequent or criminal tax proceedings?

• Question 4: (Assertion of new tax-reducing facts in post-tax proceedings)

Variant: When Marie and Ben Müller review the supplementary tax assessment, they discover that they have forgotten to claim property maintenance (pruning of several trees on their property; CHF 3,850) and professional expenses (training seminar lasting several days, which Marie Müller attended; CHF 2,200) in their tax return. Can these costs be taken into account retrospectively in the post-tax proceedings, which relate solely to non-cash benefits paid by Marie Müller Treuhand AG to Marie Müller?

• Question 5: (Joint disposition of the additional tax and the fine to both spouses)

The tax authorities issued both the supplementary tax ruling and the fine to Marie and Ben Müller in a single ruling and imposed the fine jointly on the spouses. What problems arise here with regard to the conduct of proceedings and is this handled in the same way in all cantons (the cantons of Bern, Basel-Landschaft, Aargau and Zurich are examined in more detail here as examples)?

• Question 6: (reformatory or cassatory decision)

Let's assume that the jointly imposed fine is contested by the spouses and the tax administration continues to uphold its decision and rejects the objection, whereupon an appeal and complaint is lodged with the Tax Appeals Commission. In the example just explained, would the Tax Appeals Commission make a reformatory decision, i.e. decide on the matter itself, or would it overturn the decision, i.e. set it aside, and refer it back to the lower court for reassessment?

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Case 1: Subsequent tax and criminal tax proceedings Part 2

1. facts of the case

In his objection, the representative Fred Huber requested a reduction in the monetary benefits offset. Alternatively, he applied for the tax evasion proceedings to be suspended until the legally binding conclusion of the subsequent tax proceedings and requested access to the files. Two years later, the tax administration granted the representative access to the files and informed him that it was sticking to the imputed monetary benefits, but was prepared to reduce the penalty factor to 0.75 due to the delay in granting access to the files and the long duration of the proceedings. In its ruling, the tax administration had originally set the penalty factor at 1.5, based on the standard 1.0, which had been increased by 0.5 due to Marie Müller's many years of experience in the fiduciary business.

In his subsequent statement, the representative maintained the reduction of the imputed monetary benefits already applied for. The tax administration rejected the objection on May 8, 2023, but reduced the penalty factor to 0.75 as announced. It did not comment on the suspension request.

Question

• Question 7: (Inspection of files)

In the present case, the files comprise 15 federal folders. Marie Müller's representative requested that all files be sent to his office for inspection. The tax administration, however, takes the view that the volume of files is too large and that the files can only be inspected on site. Is the lawyer entitled to have the files delivered to his office?

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Case 1: Subsequent tax and criminal tax proceedings Part 3

1. facts of the case

On June 2, 2023, the representative, Fred Huber, lodged an appeal and complaint with the Tax Appeals Commission of the Canton of Berne and demanded that the objection decisions be set aside with costs and compensation. He justified this by arguing that the subjective offense of tax evasion was not fulfilled. The tax administration's offsetting was based on the fact that Marie Müller had not been able to submit detailed receipts for the disputed bookings. However, this was neither intentional nor negligent, but was due to the fact that the new owner of Marie Müller Treuhand AG, Boring AG, refused to provide Marie Müller with the required documents.

Once again, Marie Müller's representative requested that the tax evasion proceedings be suspended until the subsequent tax proceedings had been concluded. He justified this by stating that - should it be established in the course of the subsequent tax proceedings that no under-taxation had occurred - in his opinion the tax evasion proceedings and thus the imposition of a fine would become invalid. If, contrary to expectations, the Tax Appeals Commission were to come to the conclusion that a fine should be imposed, this should be reduced to 0.33 due to the long duration of the proceedings, the very late inspection of the files and the gross violation of procedural rules regarding the fine factor. Marie Müller was unable to provide the exonerating evidence through no fault of her own, which should be reflected in the reduction of the fine factor.

Questions

• Question 8: (Suspension of criminal tax proceedings)

How is the Tax Appeals Commission to decide on the suspension request?

• Question 9: (Appeal against suspension)

Can Fred Huber appeal against the rejection of his suspension request?

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Case 1: Subsequent tax and criminal tax proceedings Part 4

1. facts of the case

As part of the instruction procedure, the Tax Appeals Commission established that Marie Müller's representative had not been granted access to two federal files containing files relating to the present proceedings by the tax administration. The Tax Appeals Commission therefore sent the two federal files to the representative's office for inspection. In the subsequent exchange of correspondence, the Tax Administration requested that the appeal and complaint be dismissed with costs. The representative confirmed his position.

Question

• Question 10: (incomplete file inspection)

What are the consequences of the fact that the tax administration did not grant the representative access to all files? How does the Tax Appeals Commission proceed?

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Case 1: Subsequent tax and criminal tax proceedings Part 5

1. facts of the case

The tax administration has listed all monetary benefits in both the subsequent tax ruling and the tax evasion ruling. The representative of Marie Müller commented on this list in detail. Concealed profit distributions have already been established in the legally binding post-tax and criminal tax proceedings against Marie Müller Treuhand AG. As can be seen from the detailed comments on the offsetting, Marie Müller disputes a considerable part of the offsetting carried out by the tax authorities. Her representative also claims that Marie Müller is in a state of evidentiary distress, as she has handed over all of the documents underlying the disputed bookings to the new executive bodies of Marie Müller Treuhand AG. Following Marie Müller's departure from the Board of Directors, they had contacted the tax authorities and accused Marie Müller of tax evasion. Now they were deliberately not handing over all the receipts to the tax authorities in order to harm her. She should therefore not suffer any disadvantage as a result. During her interrogation, Marie Müller once again referred to her lack of receipts and also expressed the suspicion that the bookkeeping might have been manipulated by the organs of Marie Müller Treuhand AG, which were hostile to her. The files also show that there are considerable disputes between Marie Müller and Marie Müller Treuhand AG and Boring AG (e.g. pending or partially already concluded criminal and civil proceedings).

Questions

• Question 11: (Examination of lack of evidence)

To what extent does the lack of evidence asserted by Marie Müller's representative play a role in the present case and are there different effects in this respect in the post-trial or tax evasion proceedings?

• Question 12: (Criteria for assessing monetary benefits)

What criteria does the Tax Appeals Commission use to examine whether there has been a tax evasion in the present case because Marie Müller Treuhand AG has distributed hidden profits to Marie Müller or Marie Müller has received benefits of monetary value from Marie Müller Treuhand AG by withdrawing funds from the company for private purposes through untruthful bookkeeping?

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Case 2: Stumbling blocks before the revision

1. facts of the case

Anna Alt lived in the canton of Zug but moved to Zurich in February 2025. A few days ago, she received her final tax assessment for the 2023 tax period. The Zug tax administration was unable to grant a deduction requested in the tax return. Anna Alt does not agree with this and would like to lodge an objection. The objection period ends on 1 May 2025 and Anna Alt uses her day off work in Zurich to complete the objection. She posts it at the post office counter in Zurich on May 2, 2025.

Questions

• Question 1 (deadline): Will the Zug Tax Administration accept the objection?
• Question 2 (variant):

Anna Alt drops the objection in a Swiss Post letterbox on the evening of May 1, 2025. The letterbox is no longer emptied on this day, but only on May 2, 2025. The envelope containing the objection also bears the postmark of May 2, 2025. How should the objection be handled?

• Question 3 (variant):

Anna Alt spends a few days abroad for a short vacation. She finds an open post office and posts the objection to the foreign post office on May 1, 2025. There is a confirmation of posting from the foreign post office. Does the answer to question 2 change?

• Question 4 (variant):

Anna Alt submits her objection on May 15, 2025. She states that she is aware that the objection deadline is 30 days and that her objection is therefore late. However, she had been ill. A certificate from her family doctor confirms that she received medical treatment from April 18 to May 10, 2025. Will the objection be upheld?

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Case 3: Stumbling blocks during the revision

1. facts of the case

Jakob Jung would like to contest his final assessment decision. He overlooked and missed the objection deadline.

Questions

1. Can Jakob Jung submit an application for reconsideration?
2. Can Jakob Jung file an appeal?
3. Jakob Jung has submitted a request for an audit, which the tax administration has not granted. How can Jakob Jung appeal against the decision?

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Case 4: Forms

1. facts of the case

Moritz Meier from Basel holds 100 % of a domestic stock corporation. He declared the dividend of CHF 100,000 in the securities register, but without a note as a qualified participation. His final assessment was made on February 25, 2025 on the basis of the tax return submitted and has become legally binding.

In May 2025, Moritz Meier discovers that he could have claimed the partial taxation procedure on the dividend. He sends a short letter to the tax administration and requests that he be granted partial taxation retrospectively. He points out that the tax administration should have noticed that he was entitled to partial taxation.

Question

• How should this be decided?

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Case 5: Revision ex officio

1. facts of the case

Max Muster lives in the canton of Zurich and is the owner of a sole proprietorship based in the canton of Aargau. For the 2020 tax period, he made a profit from self-employment of CHF 80,000, which was included in the Zurich assessment. In the 2021 tax period, his sole proprietorship made a loss, which was also included in the Zurich assessment. At the time of the Zurich assessments (January and September 2022), no assessments from the canton of Aargau were available. The Zurich assessments became legally binding without being contested.

For the 2022 tax period, Max Muster declared a loss from self-employment of CHF 200,000. This was made up of a net profit of CHF 1,200,000 in 2022 and losses in 2020 and 2021 totalling CHF 1,400,000. The losses stemmed from cases of fraud to which Max Muster fell victim. Max Muster therefore changed his business model in January 2022.

In March 2024, the responsible tax commission in the canton of Aargau allowed the requested loss offsetting from the 2020 and 2021 tax periods in full in the 2022 assessment, which led to a negative result from self-employment in the canton of Aargau. An audit was previously carried out in the canton of Aargau, which was concluded with a report dated December 2023. Max Muster received a copy of the report.

In October 2024, the Zurich tax authorities refused to deduct the 2020 loss and only allowed the 2021 loss to be offset. Max Muster does not agree with this and lodges an appeal. The appeals in the canton of Zurich were unsuccessful and Max Muster finally appealed to the Federal Supreme Court. He argues that the canton of Zurich assessed the 2020 tax period on the basis of annual financial statements that were contrary to commercial law. In the context of intercantonal tax differentiation and in the sense of an ex officio revision, he had to adopt the Aargau factors, specifically a taxable income and assets of zero francs.

Question

• What is the legal situation?