Dismissal of appeal against conviction for aiding and abetting tax evasion and denial of claims for compensation and satisfaction

Facts

Parties and procedural history:

The appellant, a trustee with a federal professional certificate, was a delegate or member of the board of directors, managing director, and shareholder of [B. AG] (registered in St. Gallen, dissolved in 2013 due to insolvency). This company acted for [C. AG] and its shareholders and managing directors, the spouses [D.] and [E.] (main tax domicile in the canton of Appenzell Ausserrhoden). In 2013, the spouses [D.] and [E.] filed a voluntary disclosure of tax evasion (including recording private expenses as business expenses of [C. AG] and not declaring non-cash benefits as taxable income). They accepted and paid the back taxes for the tax periods 2009 and 2010. In 2019, the cantonal tax administration of Appenzell Ausserrhoden issued criminal orders against the spouses [D.] and [E.] , which were confirmed by the Appellate Court of Appenzell Ausserrhoden in 2021.

A tax criminal proceeding was initiated against the appellant in 2019. In 2019, the cantonal tax administration found him guilty of aiding and abetting completed tax evasion (cantonal and municipal taxes as well as direct federal tax) for the tax periods 2009 and 2010 and imposed fines. Following an appeal and remittal by the Appellate Court of Appenzell Ausserrhoden (judgment of 10 December 2020 due to a violation of the right to be heard), a new order was issued in 2023: dismissal of the proceeding for 2009 and partially for 2010 (direct federal tax) due to statute of limitations, conviction for 2010 (direct federal tax) to a fine of CHF 5,000.- and costs of CHF 250.-. The cantonal tax administration confirmed this in 2023 with an appeal decision.

The Appellate Court of Appenzell Ausserrhoden dismissed the appellant’s appeals against these decisions with judgments of 23 April 2024 (O2V 23 7 and O2V 23 19). In his appeal to the Federal Supreme Court, the appellant alleges, inter alia, a violation of the right to be heard, the qualification of the appeal decision as a proceeding-interrupting order, the assessment of evidence, the independence of the ASU of the FTA, and the denial of claims for compensation and satisfaction.

Considerations

1. Procedural issues:

The Federal Supreme Court consolidates the two appeals (9C_308/2024 and 9C_309/2024) due to identical parties, facts, and legal issues (Art. 24 FCPA in conjunction with Art. 71 FSCA). It examines the appeal only on the points raised and applies the law ex officio (Art. 95 et seq. FSCA, Art. 106 para. 1 FSCA). The factual findings of the lower court are binding on the Federal Supreme Court, unless they are obviously incorrect or based on a violation of the law (Art. 105 para. 1 FSCA).

2. Direct federal tax (tax period 2010):

The appellant was convicted of aiding and abetting completed tax evasion. The lower court qualified the appeal decision of 20 April 2020 (or the reconsideration decision of 11 September 2020) as a proceeding-interrupting order within the meaning of Art. 184 para. 2 DFTA, since it contained all material elements of an order and interrupted the statute of limitations. The appellant argues that the appeal decision was void due to the quashing of the original criminal order. The Federal Supreme Court rejects this: Art. 184 para. 2 DFTA merely requires the issuance of an order, regardless of its subsequent annulment. The appeal decision was legally effective and interrupted the statute of limitations. The lower court also correctly found that the appellant actively promoted the tax evasion of the spouses [D.] and [E.] through targeted advice and support. The factual findings are not arbitrary and are based on the ASU reports and the statements of the parties involved. The fine of CHF 5,000.- is appropriate, as the lower court did not exceed its discretion and correctly applied the sentencing criteria (Art. 47 et seq. SCC).

3. Independence of the ASU and ECHR:

The appellant alleges a lack of independence of the ASU of the FTA and the cantonal tax administration, as they are part of the public administration. The Federal Supreme Court refers to case law, according to which a violation of Art. 6 para. 1 ECHR only exists if the person concerned was compelled to cooperate in the assessment procedure under threat of punishment. This is not the case here. The ASU reports were prepared in accordance with the statutory provisions (Art. 190 et seq. DFTA), and the cantonal tax administration was responsible for issuing the criminal order. Subsequent review by an…