Withholding tax criminal law - practice and outlook

A AG operates exclusively in Switzerland.

A is the sole shareholder and sole director.

S was Secretary of the Board of Directors until 2013, he had no signatory powers.

T AG is a larger trust company. It is entrusted with the bookkeeping and the handling of current tax matters. The mandate is managed by T.

Case 1: Start and end

financial year 2010:

As in previous years, the Annual General Meeting had approved a dividend of CHF 50,000, due on 30.04.2011. On 01.05.2011, A had submitted the annual financial statements and Form 103 with details of the dividend of CHF 50,000. As in the previous year, no "Current account shareholder" account is shown.

Financial year 2011:

As in previous years, the Annual General Meeting had approved a dividend of CHF 50,000, due on 15.05.2012. On 01.08.2012, A had submitted the annual financial statements and Form 103 with details of the dividend of CHF 50,000. As in the previous year, no "Current account shareholder" account is shown.

Financial year 2012:

A, the FTA submitted Form 103 on 02.05.2013 with the declaration of a dividend of CHF 50,000. Upon request, it will send the 2012 annual financial statements on 01.11.2014.

financial year 2013:

For the financial year 2013, A submitted neither annual accounts nor a withholding tax form. Upon request, A writes to the FTA on 30.01.2015: "I confirm as a member of the board of directors of A AG that A AG has not paid a dividend for 2013".

Financial year 2014:

For the 2014 financial year, A submitted neither annual accounts nor a withholding tax form.

fiscal year 2015:

For the financial year 2015, A submitted neither annual accounts nor a withholding tax form.

In 2016, the FTA controlled the financial years 2010 to 2015 of A AG. In the process, it discovered that A had charged the expenses of A AG since 2010 to its family holidays (in Switzerland and abroad). The annual costs charged to A AG amounted to CHF 20,000.

Question: How are these transactions to be assessed under criminal tax law?

Case 2: Legitimation for sealing

Within the framework of the criminal tax proceedings against A AG, ASU is applying for a search warrant at T AG and intends to seize files relating to the financial years 2009 to 2015 of A AG. These files include accounting records, e-mail and postal correspondence, minutes of the General Meeting and Board of Directors as well as tax documents.

T AG refuses to have these documents searched (Art. 50 para. 3 VStrR) and asserts the following

1. The files of the financial year 2009 were not relevant to the proceedings;
2. Under the files were private records of A AG;
3. The files had been entrusted to T AG and therefore supported the protection of secrets from the client;
4. T AG is regarded as a trustworthy trust company, and this reputation suffers when it passes on files that have been entrusted to it to law enforcement authorities.

Question 1: What should be done in this situation?
Question 2: How should the arguments of T AG be assessed?

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