Workshop by Daniel Holenstein on the occasion of the ISIS) seminar on October 21, 2024 entitled "Criminal withholding tax law - liability risks for board members and trustees/statute of limitations/intent"
Note: This language version is an automatically generated translation. The text may therefore contain linguistic and terminological errors.
view in original language (German)X. AG, a company based in Zug and part of an international group, acquired a warehouse from its sister company at an inflated price, which is why it recorded a write-down of CHF 1.5 million in its annual financial statements.
Attorney Y. joined the board of directors of X. AG as part of his work for the group. As one of the three board members, he co-signed the contract regarding the acquisition of the inventory, discussed the annual financial statements with the auditors, and approved the write-downs. Three years later, after he stepped down from the board of directors, X. AG acknowledged a monetary benefit of CHF 1.5 million in an audit and paid the tax owed.
A. is a shareholder and member of the board of directors of B. AG. The board of directors has delegated management responsibilities. For tax matters, B. AG has engaged a regional trust company.
After the cantonal tax administration did not recognize benefits provided to A. as business-related expenses and added them to taxable income, B. AG reported these benefits in kind to the FTA. After the External Audit Division levied the withholding tax due on these benefits, the Criminal Matters and Investigations Division initiated administrative criminal proceedings against A. for evasion of withholding tax.
G. GmbH, based in Frauenfeld, entered into a license agreement with H. Ltd, domiciled in the BVI, in which it undertook to pay license fees of CHF 10,000 per month for software developed by a shareholder of G. GmbH. The sole shareholder of H. Ltd is the partner of G. GmbH, who is resident in Frauenfeld. G. GmbH has recorded the license fees as business expenses.
Following a value-added tax audit, the External Audit Division initiated an assessment procedure against G. GmbH for the fiscal years 2017–2020, and the Criminal Affairs and Investigations Division (ASU) initiated administrative criminal proceedings against the managing director of G. GmbH. Following the questioning of the managing director, the ASU extended the criminal proceedings to I., the trustee of G. GmbH. I. is a certified auditor.
G. GmbH held its general meeting in January of the year following each fiscal year. It did not submit annual financial statements to the FTA.
On September 9, 2024, the FTA issued the assessment notice.
