Facts
The respondent [A.] held 8 shares in [X. AG] , the remaining shares of which were held by her two brothers. By a resolution of the company dated 17 May 1996, [X. AG] was dissolved and one of the brothers was appointed as liquidator. [A.] received a liquidation surplus of CHF 458,956, which was largely paid out in securities. For the payment of the liquidation surplus, the Federal Tax Administration approved the notification procedure for withholding tax on 25 March 1997. In the tax return 1997/98 signed by [A.] and her - now deceased - husband, the taxpayers failed to declare the liquidation surplus as income. The Cantonal Tax Administration Commission of Nidwalden then initiated criminal tax proceedings for attempted tax evasion and fined [A.] with a decision of 5 June 2000 with a fine of CHF 13,254.20. Against this decision, [A.] filed a complaint with the Administrative Court of the Canton of Nidwalden, which upheld the complaint with a judgment of 6 August 2001 and revoked the fine. The cantonal tax office of Nidwalden then filed an administrative court appeal to the Federal Supreme Court.Considerations
The Federal Supreme Court concluded that, although the objective elements of the offence of attempted tax evasion were fulfilled, as [A.] had not declared the liquidation surplus as income, the subjective element of intent could not be proven with the required certainty. While [A.] should have checked the correct declaration of the liquidation…