1. Facts
Marie Müller is the owner and chairwoman of the board of directors of the trust company named after her, Treuhand AG, based in Langenthal. She is married to Ben Müller. Another member of the board of directors is attorney and tax expert Jaël Stucki.
In August 2020, Marie Müller sold a portion of the shares in Marie Müller Treuhand AG to Jaël Stucki, giving her a 46% stake in the company. Marie Müller sold another 46% of the shares to Boring AG, controlled by Hans Weber. As of that point, Marie Müller retained 8% of the share capital of Marie Müller Treuhand AG. She remained Chair of the Board of Directors.
Two years later, disputes arose between Marie Müller and the governing bodies of Boring AG, which claimed at the general meeting of Marie Müller Treuhand AG held in the summer of 2022 that they had acquired the remaining 8% of Marie Müller’s shares and thus a majority stake. Consequently, Marie Müller resigned from the Board of Directors on September 22, 2022. From that point on at the latest, she no longer had access to the records of Marie Müller Treuhand AG.
Based on an audit conducted at Marie Müller Treuhand AG, the Tax Administration of the Canton of Bern initiated a tax reassessment and criminal tax proceeding against Marie and Ben Müller for the tax years 2014–2019. It justified this by stating that Marie Müller had received monetary benefits from Marie Müller Treuhand AG for several years by diverting funds for private purposes through the company’s inaccurate bookkeeping. In addition, she had recorded clearly identifiable personal expenses as business expenses. After the Tax Administration had requested and received documents from Marie Müller on several occasions, it issued a provisional fine calculation as well as a list of the monetary benefits in question. To ensure her right to a fair hearing, Marie Müller was given the opportunity to comment on this, which she did in detail—now represented by attorney Fred Huber.
Subsequently, on December 5, 2022, the tax administration issued a single joint penalty assessment to Marie and Ben Müller in the tax evasion proceedings for the tax years 2014–2019, taking the submitted comments into account in part, and simultaneously issued a joint additional tax assessment for the same tax periods. Both the fine notice and the additional tax assessment included a detailed list of the monetary benefits received by Marie Müller.
Questions
- Question 1: (Difference between back-tax and criminal tax proceedings)
From a procedural law perspective, what are the main differences between a back-tax assessment and a criminal tax proceeding?
- Question 2: (Difference regarding the burden of proof in additional tax and criminal tax proceedings)
What are the key differences regarding the burden of proof in additional tax and criminal tax proceedings?
- Question 3: (Consequences in tax reassessment and criminal tax proceedings in the event of an erroneous assessment by the tax authority)
Scenario: Marie Müller recorded expenses for a business dinner of approximately CHF 1,500 in the accounting records of Marie Müller Treuhand AG, noting that this was a small-scale birthday celebration to which Jaël Stucki had also been invited. The tax authority did not offset the costs of this birthday party against Marie Müller Treuhand AG, even though it was aware of the relevant accounting documents and account details. What impact does this have on the reassessment or criminal tax proceedings?
- Question 4: (Assertion of new tax-reducing facts in the additional tax proceedings)
Variation: While reviewing the additional tax assessment, Marie and Ben Müller realize that they forgot to claim property maintenance expenses (pruning of several trees on their property; CHF 3,850) and professional expenses (a multi-day continuing education seminar attended by Marie Müller; CHF 2,200) on their tax return. Can these costs be taken into account retroactively in the additional tax assessment proceedings, which concern only monetary benefits paid by Marie Müller Treuhand AG to Marie Müller?
- Question 5: (Joint decision on additional tax and fines imposed on both spouses)
The tax administration issued both the additional tax assessment and the fine to Marie and Ben Müller in a single joint decision and imposed the fine jointly on the spouses. What procedural issues arise here, and is this handled the same way in all cantons (the cantons of Bern, Basel-Landschaft, Aargau, and Zurich are examined in more detail here as examples)?
- Question 6: (Decision to reform or overturn)
Assuming the jointly imposed fine were challenged by the spouses and the tax administration were to uphold its decision and reject the objection, whereupon an appeal and a complaint are filed with the Tax Appeals Commission. In the example just described, would the Tax Appeals Commission issue a reformatory decision, i.e., decide on the merits of the case, or would it overturn the decision, i.e., annul it, and remand it to the lower court for reconsideration?
1. Facts
In his objection, the representative, Fred Huber, requested a reduction in the monetary benefits that had been offset. Alternatively, he requested a stay of the tax evasion proceedings until the final conclusion of the additional tax proceedings and demanded access to the files. Two years later, the tax administration granted the representative access to the files and informed him that it was maintaining the monetary benefits offset, but was prepared to reduce the fine multiplier to 0.75 due to the late granting of access to the files and the lengthy duration of the proceedings. In its decision, the tax authority had originally set the penalty factor at 1.5, based on the standard rate of 1.0, which had been increased by 0.5 due to Marie Müller’s many years of experience in the fiduciary sector.
In his subsequent statement, the representative maintained the previously requested reduction of the calculated monetary benefits. The tax administration rejected the objection on May 8, 2023, but reduced the penalty factor to 0.75 as announced. It did not comment on the motion for suspension.
Question
- Question 7: (Access to Files)
The files in this case comprise 15 federal binders. Marie Müller’s representative requests, as part of the file inspection, that all files be delivered to his law office. The tax administration, however, takes the position that the volume of files is too extensive and that the file inspection can only take place on-site. Is the attorney entitled to have the files delivered to his law office?
1. Facts
On June 2, 2023, the representative, Fred Huber, filed an appeal and a complaint with the Tax Appeals Commission of the Canton of Bern, requesting the reversal of the objection decisions with costs and compensation. He justified this by arguing that the subjective elements of tax evasion had not been met. The tax administration’s assessment was based on the fact that Marie Müller had been unable to provide detailed supporting documents for the disputed entries. However, this was neither intentional nor negligent, but rather stemmed from the fact that the new owner of Marie Müller Treuhand AG, Boring AG, refused to release the necessary documents to Marie Müller.
Once again, Marie Müller’s representative requested the suspension of the tax evasion proceedings until the conclusion of the back-tax proceedings. He justified this by stating that—should it be determined in the back-tax proceedings that no undertaxation had occurred—in his opinion, the tax evasion proceedings and thus the imposition of a fine would become null and void. If, contrary to expectations, the Tax Appeals Commission were to conclude that a fine should be imposed, it should be reduced to 0.33 due to the lengthy duration of the proceedings, the very late access to the files, and the gross violation of procedural rules regarding the fine factor. Marie Müller was prevented, through no fault of her own, from producing the exculpatory evidence, which must be reflected in the reduction of the fine multiplier.
Questions
- Question 8: (Suspension of the criminal tax proceedings)
How should the Tax Appeals Commission rule on the motion to stay the proceedings?
- Question 9: (Appeal against suspension)
Can Fred Huber appeal the dismissal of his motion to stay the proceedings?
1. Facts
During the preliminary proceedings, the Tax Appeals Commission determined that Marie Müller’s representative had not been granted access by the tax administration to two federal files containing documents related to the present proceedings. Consequently, the Tax Appeals Commission sent the two federal files to the representative’s office for review. In the subsequent exchange of correspondence, the tax administration, in its response, requested that the appeal and complaint be dismissed with costs. The representative confirmed his position.
Question
- Question 10: (Incomplete access to files)
What are the implications of the fact that the tax administration did not grant the representative access to all files? How does the Tax Appeals Commission proceed?
1. Facts
In both the additional tax assessment and the tax evasion decision, the tax administration listed all monetary benefits in a single document. Marie Müller’s representative provided detailed comments on this list. Hidden profit distributions had already been established in the legally concluded additional tax and criminal tax proceedings against Marie Müller Treuhand AG. As can be seen from the detailed comments on the offsets, Marie Müller disputes a significant portion of the offsets made by the tax administration. Her representative further argues that Marie Müller is in a position of insufficient evidence, as she had handed over all the supporting documents underlying the disputed entries to the new members of the board of Marie Müller Treuhand AG. Following Marie Müller’s departure from the board of directors, these individuals had contacted the tax authorities and accused Marie Müller of tax evasion. Now, they are allegedly withholding certain documents from the tax authorities intentionally to harm her. Therefore, she should not suffer any disadvantage as a result. During her questioning, Marie Müller again pointed out the missing documents and also expressed the suspicion that the accounting records might have been manipulated by the hostile bodies of Marie Müller Treuhand AG. The files also show that there are significant disputes between Marie Müller and Marie Müller Treuhand AG as well as Boring AG (e.g., pending or partially concluded proceedings in criminal and civil matters).
Questions
- Question 11: (Examination of lack of evidence)
To what extent does the lack of evidence asserted by Marie Müller’s representative play a role in this case, and are there different implications in this regard in the subsequent proceedings and the tax evasion proceedings?
- Question 12: (Criteria for assessing monetary benefits)
Based on which criteria does the Tax Appeals Commission assess whether tax evasion has occurred in this case because Marie Müller Treuhand AG made hidden profit distributions to Marie Müller, or because Marie Müller received monetary benefits from Marie Müller Treuhand AG by diverting funds for private purposes through the company’s inaccurate accounting?
1. Facts
Anna Alt lived in the canton of Zug but moved to Zurich in February 2025. A few days ago, she received her final tax assessments for the 2023 tax period. The Zug Tax Administration was unable to grant a deduction requested in the tax return. Anna Alt disagrees with this and wishes to file an objection. The deadline for filing an objection is May 1, 2025. Anna Alt uses her day off in Zurich to finalize the objection. On May 2, 2025, she submits it at the post office counter in Zurich.
Questions
- Question 1 (Deadline): Will the Zug Tax Administration consider the appeal?
- Question 2 (Alternative):
Anna Alt drops the objection into a Swiss Post mailbox on the evening of May 1, 2025. The mailbox is not emptied that day, but only on May 2, 2025. Accordingly, the envelope containing the objection bears the postmark of May 2, 2025. How should the objection be handled?
Anna Alt is spending a few days abroad on a short vacation. She finds an open post office and submits the objection for mailing with the foreign postal service on May 1, 2025. A confirmation of mailing from the foreign postal service is available. Does this change the answer to Question 2?
Anna Alt submits her objection on May 15, 2025. She states that she is aware that the objection period is 30 days and that her objection is therefore late. However, she was ill. A certificate from her family doctor confirms that she was under medical treatment from April 18 to May 10, 2025. Will the objection be considered?
1. Facts
Jakob Jung wishes to challenge his final assessment decision. He overlooked the objection period and missed the deadline.
Questions
- Can Jakob Jung file a request for reconsideration?
- Can Jakob Jung file a petition for review?
- Jakob Jung filed a petition for review, which the tax authority denied. How can Jakob Jung challenge the decision?
1. Facts
Moritz Meier of Basel holds a 100% stake in a domestic stock corporation. He declared the dividend of CHF 100,000 in his securities list, but without marking it as a qualified holding. His final assessment was issued on February 25, 2025, based on the tax return he filed, and has become final.
In May 2025, Moritz Meier realizes that he could have claimed the partial taxation procedure for the dividend. He sends a brief letter to the tax administration requesting that partial taxation be granted retroactively. He points out that the tax administration should have noticed that he was entitled to partial taxation.
Question
- How should this be decided?
1. Facts
Max Muster lives in the Canton of Zurich and owns a sole proprietorship based in the Canton of Aargau. For the 2020 tax period, he earned a profit of CHF 80,000 from self-employment, which was included in his Zurich tax assessment. In the 2021 tax period, his sole proprietorship incurred a loss, which was also included in the Zurich assessment. At the time of the Zurich assessments (January and September 2022, respectively), no assessments had yet been issued by the Canton of Aargau. The Zurich assessments became final and uncontested.
For the 2022 tax period, Max Muster reported a loss from self-employment of CHF 200,000. This consisted of a net profit for 2022 of CHF 1,200,000 and losses for 2020 and 2021 totaling CHF 1,400,000. The losses stemmed from fraud cases of which Max Muster was a victim. Max Muster therefore changed his business model in January 2022.
In March 2024, the competent Aargau Tax Commission fully approved the requested loss carryforward from the 2020 and 2021 tax periods in the 2022 assessment, resulting in a negative net income from self-employment in the Canton of Aargau. Prior to this, an audit was conducted in the canton of Aargau, which was concluded with a report in December 2023. Max Muster received a copy of the report.
In October 2024, the Zurich tax authorities denied the deduction of the 2020 loss and allowed only the 2021 loss to be offset. Max Muster disagrees with this and files an objection. The appeals in the Canton of Zurich are unsuccessful, and Max Muster ultimately takes the case to the Federal Supreme Court. He argues, among other things, that the Canton of Zurich assessed the 2020 tax period based on financial statements that violated commercial law. He contends that, within the framework of intercantonal tax allocation and in the spirit of an ex officio review, the Canton of Zurich must adopt the Aargau figures—specifically, a taxable income and net worth of zero francs.
Question
- What is the legal situation?
