Facts
The spouses [A.A.] and [B.A.] , née [C.] , are resident in [U.] /BE. In 2011, the husband, who is employed as a non-self-employed tax law attorney, received a job-related loyalty bonus of CHF yyy. The spouses argued in their 2011 tax return that this was a tax-free capital gain. The tax administration of the canton of Bern held a different view and included the disputed amount in income, both for the purposes of direct federal tax and cantonal and communal taxes of the canton of Bern.
Against the tax assessment decisions of 2011 dated July 16, 2014, the spouses, acting through the husband, filed an objection. They requested that the loyalty bonus be treated as a (tax-free) gift, alternatively as a capital payment for recurring services. By decisions of January 14, 2015, the tax administration dismissed the objections. The appeals filed with the Tax Appeals Commission of the canton of Bern were unsuccessful.
About three weeks before the service of the decision, on January 7, 2016, the husband suffered a heart attack. From that day until February 6, 2016, he was in the hospital, and then until February 27, 2016, in a rehabilitation clinic. According to a medical certificate of February 29, 2016, the 100% work disability due to illness (initially) lasted until March 31, 2016.
On March 23, 2016, the husband filed applications for reinstatement of the appeal deadlines with the Administrative Court of the canton of Bern and lodged appeals against the objection decision of January 29, 2016. The President of the Administrative Law Division, acting as a single judge, dismissed the applications for reinstatement of the deadlines by decision 100.2016.84/85 of April 15, 2016, and did not consider the appeals.
Considerations
The FSCA has to examine the appeal in public law matters against the decision of the Administrative Court of the canton of Bern of April 15, 2016. The appeal is directed against the dismissal of the applications for reinstatement of the deadlines and the inadmissibility of the appeals against the objection decision of January 29, 2016.
The FSCA has first established that the appeal in public law matters is admissible, as the requirements of Art. 82 lit. a, Art. 83, Art. 86 para. 1 lit. d and para. 2, Art. 89 para. 1, Art. 90 and Art. 100 para. 1 FSCA are met.
The FSCA has further established that the lower court correctly sets out the relevant legal provisions. According to these provisions, a late appeal in a direct tax matter to a cantonal administrative court is only admissible if the taxpayer, on the one hand, proves that they were prevented from filing the appeal in time due to military or civilian service, illness, absence…