Facts

Parties and Instances: [A. GmbH] (appellant), represented by attorney Daniel Buff, versus the Swiss Federal Tax Administration (FTA), Main Division Direct Federal Tax, Withholding Tax, Stamp Duties. The prior instance was the Federal Administrative Court, Division I (judgment of 5 July 2021, A-5536/2019).

Facts: The GmbH operates in the brokering of insurance, loans, real estate and travel. In the tax periods 2009 to 2012 it provided benefits in kind to its two shareholders by collecting commission income through 'black' accounts. It neither declared nor paid the withholding tax due thereon.

Proceedings:

  • Objection decision of 31 January 2019: fine for period 2011 (CHF 32'780.-- cantonal and municipal tax, respectively CHF 10'270.-- direct federal tax); the shareholders were likewise fined by penal order of 28 May 2019.
  • Objection decision of the FTA of 19 September 2019: commission income of CHF 657'337.99 for 2009 to 2012 and withholding tax of CHF 230'068.30.
  • Federal Administrative Court: appeal essentially dismissed, with only the start of the running of default interest granted.
  • Appeal to the Federal Supreme Court of 24 August 2021: annulment of the lower court's judgment, no withholding tax for 2009 to 2012; in the alternative, a finding of limitation for 2009 and no default interest from 9 September 2014.

Disputed issues: (1) violation of the principle of 'ne bis in idem' respectively double taxation; (2) forfeiture of the refund under Art. 23 WTA and its revision; (3) limitation under Art. 17 WTA, Art. 12 ACLA and absolute limitation; (4) default interest despite criminal-procedural blocking of accounts and seizure. No observations were obtained.

Considerations

1. Admissibility The contested decision is a final decision of the Federal Administrative Court in a withholding tax matter (Art. 82 lit. a, Art. 86 para. 1 lit. a, Art. 90 FSCA). The grounds for exclusion under Art. 83 FSCA do not apply. The appeal by the legitimated appellant, filed within the time limit and in the required form (Art. 42, Art. 100 para. 1, Art. 89 para. 1 FSCA), is admissible.

2. 'Ne bis in idem' and double taxation: It is undisputed that the elements of the offence of withholding tax evasion under Art. 61 para. 1 lit. a WTA are met. The Federal Supreme Court rejects a violation of 'ne bis in idem': the conviction for tax evasion and the payment of the fine have no bearing on the fact that the withholding tax remains owed; it is in principle payable without conditions once it has arisen and become due. The subsequent payment is not a conviction in the criminal-law sense and therefore not a 'second penalty'. Nor is there any impermissible formalistic approach.

3. Forfeiture and revision of Art. 23 WTA The assessment procedure is neither a refund procedure nor an administrative criminal procedure. The withholding tax has neither a fiscal nor a security function for the company; the shifting of the tax to the shareholders (Art. 14 para. 1 WTA) means that the company does not bear it definitively (BGE 136 II 525 consid. 3.3.1). The forfeiture of the refund under Art. 23 WTA does not constitute a fine (judgment 2C_56/2018). The revision of Art. 23 WTA (in force since 1 January 2019 in conjunction with Art. 70d WTA) is not applicable to the business years 2009 to 2012.

4. Limitation Under Art. 17 WTA, limitation must be denied. The taxable benefits fell due in each case on 30 June of the following year (Art. 804 para. 2 no. 5 in conjunction with Art. 805 para. 2 CO); the five-year limitation period (Art. 17 para. 3 WTA) began to run for 2009 on 1 January 2011. The letter of the FTA of 23 September 2014 on the opening of the administrative criminal proceedings, addressed to the shareholders who were also managing directors (Art. 809 paras. 1 and 3 CO), sufficiently interrupted the limitation period also as against the GmbH. The objection decision of 19…