Facts

Parties and lower instances: The appellant is [A. AG] (taxpayer), with statutory seat in [U.] /AI. Its sole board member and sole shareholder is [B.] . The respondent is the Cantonal Tax Administration of Appenzell Innerrhoden. The lower instance is the Cantonal Court of Appenzell I.Rh., Administrative Court Division (judgment V 4-2020 of 20 October 2020).

Facts: In the financial year 2017, the taxpayer recorded only one business transaction: the sale of a property in the canton of Appenzell Innerrhoden for the price of CHF 1,100,000.--. The financial statements and the tax return were prepared, as in previous years, by [C. GmbH] (fiduciary company). Two advance payments from the buyer of CHF 40,000.-- each (value dates 30 December 2016 and 3 January 2017) were not recorded; furthermore, furniture of CHF 11,000.-- was offset against the purchase price. The amounts had initially been credited to the sole proprietorship account of [B.] , and the transfer to the taxpayer did not take place.

Proceedings: On 10 December 2019, the assessment authority assessed the taxpayer for 2017 and added constructive distributions of CHF 91,000.--. On 17 December 2019, an investigation into attempted tax evasion was opened. On 24 March 2020, a decision on tax evasion was issued imposing fines of CHF 3,867.50 (direct federal tax) and CHF 3,640.-- (cantonal, district and municipal taxes). The objection of 24 April 2020 was unsuccessful; the matter was referred to the Cantonal Court on 5 May 2020 (Art. 180bis StA/AI). The court acquitted the taxpayer with respect to CHF 11,000.--, and otherwise (CHF 80,000.--) found it guilty of attempted tax evasion and imposed a fine of CHF 6,600.-- (coefficient of 66.66 percent of the tax evaded, reduced by 25 percent).

Complaints of the taxpayer before the Federal Supreme Court: It complained (1) of a violation of the principle of accusation, since the subjective elements of the offence were not clearly described in the decision and it remained unclear whether conditional intent or negligence was present; (2) of an impermissible anticipatory assessment of evidence, since the fiduciary and his wife as well as other persons had not been heard; (3) of a lack of intent, since it had selected, instructed and supervised the fiduciary with due care and the fiduciary had mistakenly failed to record the advance payments for health reasons. It requested acquittal, alternatively remittal, and a party compensation of CHF 4,704.35.

Statements: The lower instance requested dismissal and waived a response. The Tax Administration and the Federal Tax Administration waived comment.

Considerations

Formal matters and principle of accusation: The Federal Supreme Court freely reviews the application of federal law (Art. 106 para. 1 FSCA), and reviews findings of fact only for arbitrariness or manifest incorrectness (Art. 105 FSCA). The CrimPC does not apply in direct tax misdemeanour proceedings (Art. 174 ff. DFTA, tax evasion under Art. 175 ff. DFTA); Art. 182 para. 3 DFTA refers only analogously to procedural principles. Nevertheless, this constitutes a criminal accusation within the meaning of Art. 6 no. 1 ECHR, so the principle of accusation applies in a weakened form: the assessment authority must describe the facts with sufficient clarity, similar to the penal order as a substitute for an indictment (Art. 352 ff., Art. 356 para. 1 CrimPC). The description 'consciously accepted' (bewusst in Kauf genommen) sufficiently expresses that conditional intent is alleged; the taxpayer was able to defend itself against it. The complaint is unfounded.

Anticipatory assessment of evidence: An authority may assess evidence in anticipation if it has already formed its conviction and may, without violating Art. 9 Cst., assume that further evidence would not change it (BGE 145 I 167 consid. 4.1). Responsibility for auxiliary persons can be delegated under civil, tax and commercial law only to a limited extent, so the health condition of the fiduciary was not decisive. The complaint is not sufficiently substantiated under constitutional law (Art. 106 para. 2 FSCA) and fails.

Subjective elements and concepts: Attempted tax evasion (Art. 176 DFTA in conjunction with Art. 22 para. 1 SCC) is punishable only with (conditional) intent. Conditional intent requires both an element of knowledge and an element of will (Art. 12 para. 2 SCC); mere should-have-known is not sufficient. However, knowledge may, where there is a high probability that the offence will be committed, permit an inference of will. In tax law, the assessment authority may infer will from knowledge where it is certain that the declaration is incorrect; another motive than tax reduction is hardly conceivable (BGE 114 Ib 27 consid. 3a). Legal entities are liable to fines under Art. 181 para. 1 DFTA.

Attribution and duties of care: The stock corporation is bound by the conduct of its board of directors (Art. 55 para. 2 CC, Art. 718 para. 1 CO). The board of directors must act with all due care (Art.…