Facts
X. AG (Plaintiff), whose sole Board of Directors member is Z., is engaged in trade, contract brokerage, and provision of services in the clothing industry and related fashion industries. Y. (Defendant) was the sole authorized managing director of A. GmbH and - with interruptions - the sole or joint signatory managing director of the trading and management company V. GmbH together with his then-wife W.
In the spring of 1996, the Defendant asked the Plaintiff to invoice, collect, and then pay personally to him a credit of DM 421,500.- that the Defendant had against A. GmbH in connection with a company acquisition. On April 23, 1996, the Plaintiff invoiced A. GmbH in its own name for DM 421,500.- for "Expert Opinion, Environmental Analysis according to Consulting and Audit Assignment". On December 6, 1996, the Plaintiff received, according to its statement, a check from A. GmbH for DM 421,500.- which it cashed at Bank U. On the same day, it withdrew DM 400,000.- from the bank and, according to its claim, paid this amount to the Defendant against a handwritten receipt.
In April 2000, the Federal Tax Administration (FTA) conducted an audit of the Plaintiff's books. It took the position that the payment of DM 400,000.- was a non-business-related monetary benefit to a third party close to the Plaintiff's shareholder, which was subject to withholding tax pursuant to Art. 4 para. 1 lit. b of the Withholding Tax Act of October 13, 1965 (VStG). The FTA therefore demanded a withholding tax of CHF 118,370.- from the Plaintiff on June 9, 2000, with the express note that the tax amount "is to be passed on to the beneficiaries of the benefit (couple W.Y.) according to Art. 14 VStG".
Considerations
The lower court considered that disputes over the recourse claim of the withholding tax payer against the tax bearer within the meaning of Art. 14 VStG are to be decided not by the civil court, but exclusively by the FTA pursuant to Art. 41 VStG - subject…