Criminal Liability of the Organ of a Legal Entity for Complicity in Tax Evasion

Facts

[A.] was the managing director and secretary of company [H. SA] from 1996 to 2013. From 2000 to 2019, he also operated a sole proprietorship. In 2018, the Tax Administration of the Canton of Geneva opened a criminal proceeding against [A.] for instigation, complicity, and participation in tax evasion for the fiscal years 2003 to 2010. In 2019, [A.] was sanctioned with fines for complicity in tax evasion for the years 2008 to 2010. [A.] appealed against these fines, arguing a violation of the ne bis in idem principle, on the grounds that the legal entity [H. SA] had already been sanctioned for the tax evasion. The Federal Tribunal dismissed the appeal.

Considerations

The Federal Tribunal considered that the cumulative criminal sanctions against the legal entity as the principal perpetrator of a completed tax evasion and, concurrently, against the organ of that legal entity as an accessory participant in this offence, does not violate the ne bis in idem principle.

Indeed, the corporation and its organs are distinct and independent tax subjects. Although the punishability of the legal entity depends on the fault of the natural persons acting for it as organs, the acts of its organs are attributed to it as its own. The approach that the commission of an offence may lead to the punishment of several…