Criminal tax law risks of tax advice

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Compliance with tax reporting obligations requires knowledge of tax law, which taxpayers often lack; this is why they seek assistance from a tax advisor. This assistance may be limited to preparing the tax return based on documents provided by the taxpayer either voluntarily or upon request.

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This assistance is unproblematic to the extent that it remains within the bounds of tax law, i.e., leads to the lawful fulfillment of reporting obligations. It becomes problematic, however, if the person consulted knowingly or unknowingly violates reporting obligations, recommends abusive arrangements to the taxpayer, or assists them in implementing such arrangements. If this results in the fulfillment of the elements of a criminal tax offense, not only the taxpayer but also the engaged tax advisor may be liable for a criminal tax offense under certain circumstances.

Actions typical of the profession (legal actions), such as identifying tax risks and legal options for avoiding or limiting these tax risks, are neutral under criminal tax law. However, if the tax advisor’s assistance to the taxpayer exceeds the legal framework, this may lead to the tax advisor being convicted as a principal offender (“administrative criminal law system”) or as an accomplice. The following scenarios are particularly risky:

Recommending offshore structures for tax avoidance
Establishing a shell company in a low-tax canton when it is apparent that it is actually managed from another canton
Preparing a tax return while knowing that it is incomplete
Recording of personal expenses and other expenses not justified by business operations
Holding a position on the board of a company that does not declare self-assessed taxes

Citation: Daniel Holenstein, Criminal tax law risks of tax advice, in zsis) 2/2025, A6, N [...] (publ.zsis.ch/A6-2025)

Quarterly edition 2/2025

1. Tax Reporting Requirements

Tax reporting obligations depend on the assessment system applicable to the respective type of tax. In the mixed assessment system, which applies to the harmonized taxes of the federal government, the cantons, and the municipalities (direct federal tax, income and wealth tax, and canton and municipal profit and capital taxes), the taxpayer and the tax administration cooperate in determining the factual and legal circumstances relevant for complete and correct ta

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