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Daniel Holenstein

Intent and negligence


"Workshop by Daniel Holenstein on the occasion of the ISIS) seminar of 09 May 2023 entitled "Intent and Negligence".

The complete seminar folder can be ordered for CHF
The corresponding case solutions can be purchased for CHF
(introductory price)
can be purchased in the shop.
The workshops are also available individually in the "Documents" section.
The case solutions and other documents can be obtained free of charge in the shop.

Case 1: Deviating qualification under tax law

1. facts of the case

X. founded a recruitment company together with his business partner Y. and led it to success. In 2008, X. and Y. sold their company at a profit to a group of companies and left the company. In 2009 and 2010, the recruitment company ran into economic difficulties, which is why the acquirer asked X. to take over the management of the company on an interim basis. X. complied with this request on the condition that, in addition to a monthly salary of CHF 17,000 and a commission amounting to 80% of the EBIT increase, he could acquire a 5% shareholding. In 2011, he buys this shareholding at a price of CHF 50,000.-, which corresponded to the share of 5% of the capitalized EBIT at that time. In 2013 he left the recruitment company and sold his participation at the price of 500'000.-, which corresponded to the share of 5% of the capitalized EBIT. In his tax return completed by his tax advisor, who used to be a cantonal tax commissioner, he declared the disposal of the shares, but not the proceeds from the sale. In 2019, the tax administration initiated an after-tax and evasion procedure, since in its opinion the proceeds from the sale were income from dependent gainful employment. Because X. had not declared this income, he had negligently evaded taxes. In case of uncertainty about the tax qualification, he was obliged to inquire with the tax administration about the tax consequences. By failing to do so, he had breached his duty of care.


- Is the view of the tax administration correct?

Case 2: Reclassification of expenses into non-cash benefits

1. facts of the case

Y. is the sole member of the board of directors of various real estate companies of a wealthy family living abroad. The shareholders are members of the advisory board of the board of directors. They conduct negotiations with the tenants of the commercial properties without receiving any compensation. In return, the real estate companies reimburse them for their expenses, which include overnight stays in expensive hotels and a limousine service. After the companies had moved their headquarters from the Canton of Zug to the Canton of Zurich, the tax administration of the Canton of Zurich objected to the expenses as not being justified in terms of business. After several years of discussions, the Tax Appeals Court protected the offsets in a pilot case. Thereupon, the tax advisor Y. declared that the tax authorities of the Canton of Zurich would now submit a report to the FTA, so that the withholding tax would also have to be paid. This prophecy came true. After the companies had paid the withholding tax, the Criminal Matters and Investigations Department of the FTA opened administrative criminal proceedings against Y. and accused her of (possibly) intentional evasion of the withholding tax because she had not settled the monetary benefits in due time and had not paid the withholding tax.


- Is the ASU's accusation true?

Case 3: Overburdened widow

1. facts of the case

After the death of her husband, who had taken care of the administrative matters of the couple during his lifetime and also filed the tax returns, the widow did not file any tax returns for years, so that she was assessed on a discretionary basis. After the tax administration imposed an administrative fine on her for violating procedural obligations, she sought out a fiduciary who filed tax returns for the open years. After receiving these tax returns, the tax administration determined that the discretionary assessments were too low. Therefore, the opened post-tax and evasion proceedings against the widow.


- Has the widow committed the crime of completed evasion?

Case 4: Accounting error of the trustee

1. facts of the case

A. AG sold a property in the 2017 financial year at a price of CHF 1.1 million. In the assessment proceedings, the tax administration determined that two advance payments of CHF 40,000 each had not been recorded in the annual financial statements prepared by C. GmbH, which is why it added them to the profit. After the assessment had become final, the tax administration opened proceedings for attempted evasion against A. AG.


- Has A. AG liable to prosecution for attempted evasion?

Case 5: Refused refund

1. facts of the case

A. is the sole shareholder of A. SA. In the 2013 tax return, he declared the tax value of CHF 5.34 million of A. SA as well as a dividend of CHF 6.1 million distributed by A. SA. In the 2014 tax return, he again declared a tax value of CHF 5.34 million, but left the field "Gross income subject to withholding tax" blank. On May 4 and 5, 2017, the FTA conducted an audit of A. SA's accounts and found that it had paid pecuniary benefits by bearing private expenses in the 2012-2015 tax periods. Therefore, the FTA offset pecuniary benefits of CHF 100,000 per annum. On December 21, 2017, A. filed new tax returns for the years 2013 and 2014, in which he declared pecuniary benefits of CHF 100,000.00 per year and claimed back the withholding tax. By assessment ruling dated September 11, 2018, the tax administration assessed the tax and refused to refund the withholding tax.


- Was the tax administration justified in refusing to refund withholding tax in the 2014 tax period?


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