Facts
The appellant, [A.], was fined CHF 50,000 by the Federal Tax Administration (FTA) for intentional evasion of withholding tax. [A.] lodged an objection and requested that the administrative proceedings against her be discontinued, or alternatively, that the case be referred to a criminal court for assessment. The FTA referred the files to the Public Prosecutor's Office of Zurich-Limmat, which in turn referred the case to the District Court of Zurich. The District Court of Zurich convicted [A.] of multiple evasion of withholding tax and fined her CHF 50,000. [A.] appealed against this judgment. The High Court of the Canton of Zurich found [A.] guilty of evasion of withholding tax and fined her CHF 40,000.
[A.] requests with her appeal in criminal matters that the high court judgment be fully annulled, she be acquitted of guilt and penalty, and the cost and compensation consequences for the entire criminal proceedings be borne by the state treasury.
Considerations
The Federal Court has dealt with the question of whether the referral of the criminal proceedings to the criminal court without a final decision on the payment obligation is admissible. The appellant argues that the lower court violated Art. 73 Abs. 1 Satz 2 ACLA by admitting the indictment even though there was no assessment of the withholding tax.
The Federal Court considers that Art. 73 Abs. 1 Satz 2 ACLA aims to avoid contradictory decisions. This appears to be sensible, especially since, according to Art. 77 Abs. 4 ACLA, a final decision on the payment or refund obligation is generally binding on the criminal court. However, the risk of contradictory decisions exists only in those cases where a decision on the payment or refund obligation can be made or a corresponding procedure is conducted.
If - as in the present case - the preliminary question of the payment or refund obligation cannot be decided on the administrative law path for any reason, there is no risk of contradictory decisions.…