Interruption of the assessment limitation period by notification from the assessing authority; dismissal of the appeals concerning cantonal and communal taxes and federal direct tax, tax periods 2014 and 2015

Facts

Parties and instances: The appellant (taxpayer) had his legal domicile for tax purposes in [U.] /AR during the tax periods 2014 and 2015. The opposing party was the tax administration of the Canton of Appenzell Ausserrhoden (assessing authority). The prior instance was the Cantonal Court of Appenzell Ausserrhoden, 2nd Division.

Facts: On 27 September 2019 (tax period 2014) and on 12 October 2020 (tax period 2015), the assessing authority sent the taxpayer a letter each under the procedure 'A-Post Plus', in which it stated that the tax assessment could not yet be carried out and that, with the letter, it was interrupting the assessment limitation period for cantonal and communal taxes and federal direct tax.

Assessment and prior instance: By decisions of 20 April 2021, the assessing authority carried out the assessments; the objections were dismissed by decisions of 28 May 2021. The Cantonal Court dismissed the appeals by decisions O2V 21 33 (cantonal and communal taxes) and O2V 21 35 (federal direct tax) of 18 January 2022. It found that the letter of 27 September 2019 had been duly served according to 'Track & Trace', and affirmed the interruption of the assessment limitation period in both periods.

Requests for relief: By two submissions of 21 February 2022, the taxpayer requested the annulment of the decisions and a finding that the assessment limitation period had expired in both periods. On the procedural side, he requested that the proceedings concerning federal direct tax be stayed pending the decision on cantonal and communal taxes.

Subject matter of the dispute: The issue was whether the notifications of 27 September 2019 and 12 October 2020 were capable of interrupting the assessment limitation period. The due service of the letter of 27 September 2019 was no longer disputed before the Federal Supreme Court.

Proceedings before the Federal Supreme Court: Proceedings 2C_174/2022 and 2C_175/2022 were joined, as they were based on the same facts and the same legal questions. The request for a stay thereby became moot. No exchange of written submissions was ordered.

Considerations

Admissibility and scope of review: The appeals in public law matters (Art. 82 lit. a, Art. 86 para. 1 lit. d, Art. 89 para. 1, Art. 90, Art. 100 para. 1 FSCA in conjunction with Art. 146 DFTA or Art. 73 DTHA) were considered admissible. The Federal Supreme Court applies federal law ex officio and reviews with full cognition (Art. 106 para. 1, Art. 95 lit. a FSCA). Constitutional complaints and cantonal law, by contrast, are subject to the qualified duty to allege and substantiate (Art. 106 para. 2 FSCA). Findings of fact by the prior instance may be corrected only in case of manifest inaccuracy (arbitrariness) (Art. 105 FSCA).

Federal direct tax: The relative assessment limitation period is five years and the absolute period is 15 years after the end of the tax period (Art. 120 para. 1 and 4 DFTA). Under Art. 120 para. 3 lit. a DFTA, the period begins to run anew with each official act brought to the knowledge of the taxpayer. A written notice indicating that the assessment is yet to be carried out interrupts the period. The letters of 27 September 2019 and 12 October 2020 satisfied these requirements, since they could have no other meaning than that the assessment would still be carried out later. The taxpayer's objections, based on BGE 79 I 248 and 126 II 1,…