Rejection of appeal due to late filing of the legal remedy deadline in tax criminal matters

Facts

The Tax Administration of the Canton of Bern issued tax reassessment and penalty notices on 29 July 2021 against the spouses A.A. and B.A. for completed tax evasion (with eventual intent) for the 2015 tax year. The penalties amounted to CHF 3,882.85 for cantonal and municipal taxes and CHF 1,794 for the direct federal tax. The spouses filed an objection, which the Tax Administration rejected with objection decisions dated 11 January 2022. At the same time, it separated the tax reassessment proceedings from the penalty proceedings: the tax reassessment proceedings continued against both spouses, while the penalty proceedings were continued only against A.A. The Tax Administration discontinued the penalty proceedings against B.A.

On 11 February 2022, A.A. and B.A. filed an appeal and complaint with the Tax Appeals Commission of the Canton of Bern. The Commission stayed the proceedings concerning tax reassessments pending the conclusion of the tax criminal proceedings and, due to lateness, did not enter into the legal remedies against the penalty proceedings with decisions dated 10 May 2022. The spouses unsuccessfully appealed to the Administrative Court of the Canton of Bern, which dismissed their requests with a judgment dated 19 December 2022 (100.2022.157/158U).

With an appeal in public law matters dated 1 February 2023, A.A. and B.A. appealed to the Federal Supreme Court and requested the annulment of the Administrative Court’s decision and referral for substantive review. The Federal Supreme Court examined the appeal and concluded that the deadline for filing the legal remedy had been missed, which is why it could not enter into the request.

Considerations

The Federal Supreme Court examines appeals in public law matters pursuant to Articles 82 et seq. FSCA. It applies federal legislation ex officio and reviews it with full cognition (Art. 106 para. 1, Art. 95 lit. a 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 paras. 1 and 2 FSCA).

The appellants alleged a violation of the presumption of innocence (Art. 32 para. 1 Cst., Art. 6 para. 2 ECHR), the principle of good faith and the prohibition of arbitrariness (Art. 5 para. 3 Cst., Art. 9 Cst.). The Federal Supreme Court dismissed these objections as insufficiently substantiated. Pursuant to Art. 106 para. 2 FSCA, constitutional individual rights must be clearly and in detail set out. The appellants did not meet this qualified obligation to raise and substantiate objections, which is why the Federal Supreme Court could not enter into these requests.

The subject of the proceedings was solely whether the lower court had correctly confirmed the decisions of the Tax Appeals Commission, in which it had not entered into the legal remedies due to lateness. The appellants admitted that they had missed the 30-day appeal deadline. The deadline began on 13 January 2022 and ended on 11 February…