Dangerous game with risk of discovery - The criminal tax liability of external advisors and internal functionaries in the light of the Federal Supreme Court rulings 6B_90/2024 and 6B_93/2024
Citation: René Matteotti, Natalja Ezzaini, Luca Aspesi, Dangerous game with risk of discovery - The criminal tax liability of external advisors and internal functionaries in the light of the Federal Supreme Court rulings 6B_90/2024 and 6B_93/2024, in zsis) 2/2025, A7, N [...] (publ.zsis.ch/A7-2025)
Federal Supreme Court rulings 6B_90/2024 and 6B_93/2024 of February 3, 2025, address the criminal liability of external consultants and internal company officials in connection with tax obligations relating to withholding tax. While in the first case the internal controller and tax officer was convicted as the perpetrator of tax evasion, in the second case the court acquitted an external consultant of the charge of incitement to tax evasion.
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Federal Supreme Court rulings 6B_90/2024 and 6B_93/2024 of February 3, 2025, address the criminal liability of external consultants and internal company officials in connection with tax obligations relating to withholding tax.
While in the first case the internal controller and tax officer was convicted as the perpetrator of tax evasion, in the second case the court acquitted an external consultant of the charge of incitement to tax evasion. The rulings exemplify how differently criminal assessments can turn out depending on one’s role and proximity to management.
External consultants cannot, in principle, be held criminally liable for their clients’ tax offenses, provided their activities are limited to assessing the tax implications of a situation that has already occurred or preparing a case for a potential dispute with the tax authorities. Nor does the mere fact that an external advisor points out the tax risks of a situation planned or already implemented by the client, in and of itself, give rise to criminal liability.
The situation is different if the external advisor provides the taxpayer with specific recommendations on how to deliberately conceal a situation involving tax risks from the tax authorities in order to minimize the risk of detection. If such a recommendation is made prior to a final assessment in regular proceedings or as part of a self-assessment, this may constitute the elements of incitement or at least aiding and abetting a tax offense if the taxpayer or the company official responsible for taxes fails to comply with the reporting obligations.
In contrast, internal corporate tax officers bear increased criminal liability due to their organizational integration within the company and their responsibility for tax-related processes. Their role within the company means that the threshold for criminal liability is crossed more quickly—especially if they are aware of the tax risks associated with a particular situation or should have been aware of them had they exercised due diligence, yet they nevertheless speculate that the tax authority will not discover the situation. Gambling with the risk of detection carries a significant criminal risk and is, figuratively speaking, playing with fire.
The rulings underscore the importance of proactively identifying criminal risks in tax advisory work, informing clients about them, and thoroughly documenting one’s own advisory activities. In the context of mutually agreed settlements to determine the tax liability in connection with a situation that has already occurred, the criminal risks faced by the external advisor and the company’s internal tax officers must also be taken into account.
Swiss legislation contains a multitude of criminal tax law provisions enshrined in various statutes. These provisions apply not only to taxpayers themselves but also extend liability to third parties who play an active role in tax proceedings. In addition to the principal offender, accomplices and instigators may also be prosecuted and held accountable. As a result, both officers of legal entities and employees entrusted with a company’s tax affairs, as well as external advis
