Facts

This decision concerns a dispute between the Compensation Fund of the Canton of Zurich (the appellant) and D. and others (the respondents), as well as the AHV/AVS Appeals Commission of the Canton of Zurich. The Compensation Fund seeks to hold the corporate bodies of D. AG liable for the non-payment of AHV/AVS contributions. The main points are as follows:
  • The Compensation Fund can hold the corporate bodies of a legal entity liable even if the entity still exists legally, without having to wait for its bankruptcy.
  • For the 5-year prescription period under Art. 82(2) OASIA to apply, the AHV/AVS authorities must examine as a preliminary matter whether the claim for damages arises from a punishable act, even in the absence of a criminal conviction.
  • The evidentiary requirements to establish a punishable conduct are the same as in criminal proceedings, and the standard of proof of the preponderance of probabilities is not sufficient.

Considerations

The Federal Social Insurance Court considers that the Compensation Fund can hold the corporate bodies of a legal entity liable even if the entity still exists legally, without having to wait for its bankruptcy. Indeed, the purpose of the liability under Art. 52 OASIA would be deprived of its substance if the existence of the legal entity prevented its corporate bodies from being held liable. Regarding the application of the 5-year prescription period under Art. 82(2) OASIA, the Court considers that the AHV/AVS authorities must examine as a…