Facts
The taxpayer [A.A.] was the Managing Director with sole signatory power of [C. GmbH] . In the years 2001 and 2002, he received excessive flat-rate expenses from the company amounting to a total of CHF 83,000.-- as well as the assumption of the private taxes of the married couple amounting to CHF 21,649.--. These amounts were not declared in the tax returns of the married couple for 2001 and 2002. The tax authorities of the Canton of Freiburg and the Canton of Bern calculated the excessive expenses and the private taxes as taxable income. The Federal Court confirmed that the objective elements of completed tax evasion were fulfilled, as the taxpayer had caused the legally binding assessments for 2001 and 2002 to be incomplete. The subjective element of negligence was also fulfilled, as the taxpayer as Managing Director should have recognized the inadmissibility of the excessive flat-rate expenses. The lower court had rightly set the fine at the factor of 0.5.Considerations
The Federal Court states that according to the case law in tax criminal proceedings, the presumption of innocence applies and the authorities bear the burden of proof for the objective and subjective elements. In the present case, the objective elements of…