Liability of tax authorities for unjustified tax attachment under Art. 273 DEBA

Facts

Parties and instances:

The appellants are the Canton of Ticino and the Ticino municipalities of Melano (now Val Mara), Lugano and Paradiso. The respondent is A. AG in liquidation (legal predecessor: B. AG).

Facts of the case:

On 16 May 2018, the tax authorities of the Canton of Ticino and the aforementioned municipalities carried out tax attachments against the debtor C., who resides abroad, with banks in Zurich (Bank D. and Bank E. Ltd.). The attachments concerned claims of the plaintiff against these banks. The plaintiff asserted third-party claims to the attached assets. The tax authorities initially withdrew the attachments but immediately issued new identical attachment orders. The Cantonal Court of V. dismissed the opposition action brought by the tax authorities and released the assets from the attachment.

The plaintiff filed an attachment damages claim under Art. 273 para. 1 DEBA against the tax authorities with the Zurich District Court on 17 January 2020, seeking damages of a total of CHF 115,192.85 plus interest. The defendants objected to the local jurisdiction of the Zurich District Court. By order of 19 January 2023, the Zurich District Court declined to enter into the action due to lack of jurisdiction.

On 14 February 2023, the plaintiff appealed to the Higher Court of the Canton of Zurich. The Higher Court allowed the appeal, set aside the first-instance judgment and referred the matter back to the first instance for further proceedings. It affirmed the applicability of Art. 273 DEBA to tax attachments and the jurisdiction of the Zurich District Court as the place of attachment.

The tax authorities filed an appeal in civil matters with the Federal Supreme Court and sought the setting aside of the higher court judgment and the confirmation of the first-instance order. The Federal Supreme Court dismissed the appeal insofar as it was admissible.

Considerations

Applicability of Art. 273 DEBA to tax attachments:

The Federal Supreme Court confirms that tax authorities, like any other creditor, are liable for unjustified tax attachments under Art. 273 para. 1 DEBA. The liability provision is a special rule of the DEBA and provides for strict liability independent of fault. This liability serves as compensation for the facilitation granted to the creditor when ordering an attachment. The attachment damages claim is a civil matter and falls under the CPC (Art. 1 para. 1 lit. c CPC).

No deviation by tax law:

Neither the Federal Act on Direct Federal Tax (DFTA) nor the Federal Act on the Harmonisation of Direct Taxes of the Cantons and Municipalities (DTHA) contain specific provisions on liability for attachment damages in connection with tax attachments. The tax laws do not provide for any deviation from the general liability rule of the DEBA. The special features of the tax attachment (e.g. direct order by tax authorities without judicial involvement) do not justify different treatment with regard to liability for attachment damages.

Equal treatment of public-law and private-law creditors:

Debt enforcement law is based on the principle of equal treatment of public-law and private-law creditors. Tax claims are enforced like private claims. The liability of the public…