Facts
In September 2007, Casino X. AG was the victim of a check fraud: A French player cashed three forged bank checks, each for EUR 400,000 (CHF 1,932,000). In December 2007, various perpetrators also managed to obtain "credits", i.e. gaming funds, from certain slot machines without inserting coins, and then obtain certain payouts.
In connection with these incidents, Casino X. AG requested the Federal Gaming Board (ESBK) to reduce the gross gaming revenue relevant for the calculation of the casino tax by CHF 1,302,375 (check fraud) and CHF 15,749 (slot machine manipulation). The ESBK rejected the requests and set the casino tax at a total of CHF 62,126,511.91.
The Federal Administrative Court overturned the ESBK's decision and referred the matter back to the lower instance for a new assessment, on the grounds that neither the historical will of the legislator nor the casino legislation indicates that the casinos not only have to bear the risk of default on unlawfully paid-out winnings, but also have to pay taxes on gaming turnover generated in a delictual or at least unlawful manner, which is not offset by a real financial stake.
Considerations
The Federal Supreme Court partially upholds the appeal filed by the Federal Gaming Board against this:
With regard to the check fraud, the ESBK rightly rejected the request to deduct the gross gaming revenue of CHF 1,302,375 generated by the alleged check fraudster. Given that he was an alleged "high roller", the casino operator failed to exercise the due diligence required under casino law. Since the operator has violated fundamental due diligence obligations under casino law, the gross gaming revenue must be calculated as if the game and the exchange of money had been lawful.
However, the…