Judgment of the Federal Court on the Ideal Concurrence between Tax Fraud and Tax Evasion

Facts

The appellant X. was convicted by the District Court of Dielsdorf for continued completed and attempted tax fraud in relation to state and municipal taxes as well as federal direct taxes. Later, the Finance Directorate of the Canton of Zürich initiated a supplementary tax and penal tax procedure against X. for tax evasion for the tax years 1982 and 1983. The Administrative Court of the Canton of Zürich imposed a penal tax on X. for tax evasion, even though he had already been punished for tax fraud. X. filed a constitutional appeal, arguing that the punishment for tax evasion violated the principle of "ne bis in idem".

Considerations

The Federal Court states that there is an ideal concurrence between the offences of tax fraud and tax evasion. Tax fraud does not fully encompass the unlawful content of tax evasion, as the intent to evade taxes is sufficient for tax fraud, but the occurrence of the result, i.e. the tax evasion, is not required. Furthermore, the tax laws regularly provide for punishment for tax evasion in cases of tax fraud. Therefore, the appellant can be punished for both tax fraud and tax evasion without violating the principle of "ne bis in idem".

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