Tax procedure and criminal tax law
Workshop on the occasion of the ISIS) seminar on 2/3 March 2020 entitled "Corporate Tax Law 2020".
1. tax evasion through failure to submit a tax return
1.1 Facts of the case
Antoine Maître is married and lives in Lausanne. He has been working as an independent lawyer in Geneva since 2010.
The Maître and his wife submitted their 2010-2014 tax returns to the canton of Vaud within the deadline. The Vaud tax authorities assessed the spouses and made an intercantonal tax assessment in which the husband's profits from self-employment were transferred to the canton of Geneva or taxed only at the rate applicable in the canton of Vaud. The canton of Vaud sent copies of the assessment notices to the Geneva tax authorities. The tax procedure in the canton of Vaud was therefore correct in every respect as follows:
It was not until 2015 that the Geneva tax administration started to collect the 2010-2013 taxes due to the limited tax liability. In April 2015, the spouses responded immediately to the Geneva tax authorities' request to submit their 2010-2013 tax returns.
The Geneva tax administration assessed the (undisputed) taxes and imposed fines on Antoine Maître for attempted tax evasion (amounting to 1/3 of the evaded tax).
Antoine Maître objected to the fines, claiming that the Vaud tax authorities had assured him that they had sent him a copy of the Geneva tax authorities for each tax year. The Administrative Court of the Canton of Geneva overturned the fine order in a ruling of 15 May 2018, after which the Geneva tax authorities brought the matter before the Federal Court.
1.2.1 Appeal to the Federal Supreme Court
What is the appeal to the Federal Supreme Court called? What can be appealed against (admissible grounds of appeal)?
1.2.2 Taxation of married couples
Who has limited tax liability in Geneva? Antonine Maître or also his wife ?
1.2.3 Tax return obligation
Do the spouses violate a procedural obligation (obligation to file a tax return) or is filing a tax return at the secondary tax domicile unnecessary?
1.2.4 Statute of limitations on investments
Can the Canton of Geneva still assess taxes for the 2010-2013 fiscal years in an open procedure?
1.2.5 Tax offences
Is Antoine's conduct relevant under criminal tax law with regard to (a) completed tax evasion, (b) attempted tax evasion, (c) tax fraud and/or (d) breach of procedural obligations?
1.2.6 Criminal liability of the wife
Did the wife Elonie commit a crime?
1.2.7 Entry in criminal records
Does Antoine Maître expect to be entered in the criminal record?
1.2.8 After tax
What would have changed if the Geneva tax administration had not even become active until 2016?
2. (unpunished) voluntary disclosure of AIA accounts
2.1 The facts of the case
Pia Pfister is an independent owner of a restaurant. For 20 years she has had an account with the Deutsche Bank with 2 million Euros, which she has so far "forgotten" to declare in her tax returns. Pia Pfister has been legally assessed until and including the tax period 2018. Mrs. Pfister would like to buy a house with this money and therefore make a clean sweep.
2.2.1 Own drive
Does a valid voluntary declaration require the voluntary participation of the obligated persons? Does the motive play a role in the validity of the voluntary disclosure?
2.2.2 Influence AIA
What influence will the entry into force of the AIAG on 1 January 2017 have on self-denunciations concerning an account in an AIA state?
What are the consequences for Pia Pfister, if a valid non-punishable voluntary disclosure
- is affirmed?
- is denied?
3. non-declaration of works of art
3.1 Facts of the case
Since 2005, Peter Pan has owned three inherited paintings with a current market value totalling CHF 5 million. Over the last 15 years, he has declared a total of CHF 100,000 for each of these paintings in his tax returns.
His wife Petra Pan, who has been separated from him since the summer of 2019, reports this fact to the tax authorities in early 2020 and encloses with her letter documents from the insurance company stating that the paintings were insured for 4 million Euros 12 years ago. Mr. and Mrs. Pan's tax assessment is legally binding up to and including 2018.
3.2.1 After-tax procedure
Can an after-tax procedure be carried out? Against whom? For which tax periods? Who is liable for any subsequent taxes?
Can Peter Pan successfully assert that, since he is still married to Petra, there is an unpunished voluntary disclosure?
3.2.3 Evasion procedures
Can an evasion procedure be carried out?
3.2.4 Involved persons
Against whom are possible evasion proceedings opened? Who is liable for any fines?
4. child wages
4.1 Facts of the case
Panzer AG has been legally assessed for the 2016 tax period, as has Paul Panzer, its widowed sole shareholder and director.
It subsequently emerged that Panzer AG's profit had been under-declared by CHF 50,000 because the tax advisor Sigi Süsswind had advised his client Paul Panzer to reduce the AG's profit, which had been exceptionally high in 2016, by "paying" his two 10- and 12-year-old children a salary of CHF 25,000 each or by making a corresponding entry. Paul Panzer accepted this advice, which is why Sigi Süsswind made the corresponding entry and submitted the tax returns of Panzer AG and Paul Panzer.
No tax returns were filed for the children; Paul received the sum of CHF 50,000 in cash.
4.2.1 Panzer AG
What consequences does Panzer AG have to expect?
4.2.2 Paul Panzer
What consequences does the taxpayer Paul Panzer have to expect? Please explain all types of tax and (tax) offences concerned.
4.2.3 Variant: self-employment
What would be different if Paul Panzer were self-employed?
4.2.4 Tax consultant Sigi Süsswind
What consequences does the tax consultant Süsswind have to reckon with?
4.2.5 Ability of a tax bus to be passed on
Can Paul Panzer pass a possible fine for tax evasion on to his advisor Süsswind? If so, for what reason? If not, why not?