Facts
The appellant, [A.] , received a dividend of CHF 89,760.-- from [X. AG] on January 27, 2012, in which he is a member of the board of directors. The dividend was decided on December 20, 2011. [A.] did not declare the dividend in his 2011 tax return or his 2012 tax return. It was not until the Cantonal Tax Office requested him to submit documents on dividend distribution on March 11, 2014, that he declared the dividend retrospectively in a letter dated April 2, 2014.
The Cantonal Tax Office refused to refund the withholding tax levied on the dividend for the year 2011, as the dividend had not been declared in the tax returns. The appeal against this decision was unsuccessful before the Special Administrative Court for Tax Matters of the Canton of Aargau.
[A.] then applied to the Federal Court to refund the withholding tax of CHF 31,416.-- on the dividend of CHF 89,760.--. The Cantonal Tax Office and the Federal Tax Administration requested that the appeal be dismissed.
Considerations
The Federal Court examined whether the non-declaration of the taxable dividend constituted an attempted tax evasion or whether it occurred spontaneously and on its own initiative. The lower court had found that the offense of tax evasion was fulfilled, as the non-declaration of the dividend was suitable for achieving a tax saving in direct taxes.
The Federal Court ruled that the appellant did not meet the criteria for an independent subsequent declaration of the submitted tax return, as the subsequent declaration did not occur on his initiative, but only after the tax authorities had already become aware of the dividend. Such a situation excludes the refund of withholding tax according to the case law.
The…