Suspension of the prescription of a tax claim in the presence of an infringement of federal administrative legislation

Facts

The company A. SA, headquartered in C., was found to be a debtor by the Federal Tax Administration for an amount of CHF 18,361,784.35, plus interest, in respect of withholding tax. The Federal Tax Administration opened an administrative criminal investigation against B., the sole administrator of A. SA.

The Federal Administrative Court annulled the decision of the Federal Tax Administration, considering that the tax claim was time-barred. The Federal Tax Administration then appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court ruled that the prescription of the criminal action and, consequently, of the tax claim, was suspended from the moment the Federal Tax Administration issued its decision recognizing A. SA as the debtor of the disputed claim, and until the conclusion of the objection procedure.

Indeed, according to Article 11(3) of the Federal Act on Administrative Criminal Law (VStrR), the prescription is suspended for the duration of an objection or appeal procedure concerning the liability for a payment. The Federal Supreme Court considered that this objection procedure begins as soon as the…