Swiss Federal Supreme Court, 01.05.2026, 9C_164/2025
Facts
In 2021, the tax administration of the canton of Appenzell Ausserrhoden initiated tax evasion proceedings against A.________ (the appellant) for the 2014 tax year. He was accused of failing to declare income of CHF 3,392,500. This amount was allegedly received as remuneration for his influence, exercised in his capacity as Chairman of the Board of Directors of E.________ AG and CEO of Bank F., in the context of a complex transaction (the "B.-Deal"). In this matter, a third party, D., had obtained a fiduciary interest ("Schattenbeteiligung") in B. SA and had promised the appellant half the value of that interest. In 2014, the appellant, needing liquidity, received a loan of CHF 2,064,000 from D.________. Later that same year, the amount of the appellant's remuneration was definitively set at CHF 3,392,500. This claim was used to offset the repayment of the loan, and the balance of CHF 1,328,500 was paid to the appellant. The tax administration convicted the appellant of completed tax evasion and imposed fines for direct federal tax as well as cantonal and communal taxes. This decision was upheld by the Obergericht (High Court) of Appenzell Ausserrhoden, against which the appellant filed a public law appeal with the Federal Supreme Court. (consid. A, B, 3.1)
Law
The Federal Supreme Court recalls that, according toArt. 16 para. 1 of the Federal Act on Direct Federal Tax (DBG), all income, whether one-time or periodic, is subject to income tax. UnderArt. 175 para. 1 DBG, a taxpayer commits tax evasion if they intentionally or negligently cause a tax assessment to be improperly omitted or a final tax assessment to be incomplete. The fine is, as a general rule, set at the amount of the evaded tax. Tax evasion proceedings are formal criminal proceedings. The cantonal provisions in this regard (in this case, Art. 19 para. 1 and 243 para. 1 and 2 of the Appenzell Ausserrhoden Tax Act) are harmonized with federal law (Art. 7 para. 1 and 56 para. 1 StHG) and provide for identical rules. The Federal Supreme Court bases its judgment on the facts established by the lower court (Art. 105 para. 1 BGG), unless they are manifestly inaccurate or based on a violation of the law, which is equivalent to arbitrariness. (consid. 1.3, 2, 5)
Application to the case
The appellant contests the classification of the CHF 3,392,500 as taxable income in 2014. He puts forward three main arguments: the funds originated from an unrepaid loan, from a non-taxable capital repayment linked to an alleged 5.8% stake in B.________ SA, or, alternatively, from fees earned in 2012 rather than 2014. The Federal Supreme Court rejects these arguments. Firstly, it is bound by the findings of the lower court, which established in a non-arbitrary manner that the loan from D.________ had been validly offset by the appellant's claim. Using a claim to extinguish a debt does not render it non-taxable. (consid. 4.1, 4.2)
Secondly, the lower court deemed the existence of a 5.8% stake acquired by the appellant "not credible," a finding of fact that is not manifestly inaccurate and therefore binds the Federal Supreme Court. Consequently, the capital repayment theory is dismissed. (consid. 4.3)
Thirdly, regarding the timing of the income realization, the Federal Supreme Court confirms the lower court's analysis. Even if an agreement in principle existed prior to 2014, the 2012 documents show that the value of D.________'s interest, and consequently the appellant's claim, was merely "potential" and "forecasted." It was not until August 2014 that the amount of the appellant's claim was definitively set at CHF 3,392,500. It was at this point that the claim became certain and due, and thus realized for tax purposes. As the payments and the offsetting took place in 2014, the income was correctly attributed to that tax period. (consid. 4.4, 4.5, 4.6)
Finally, the Federal Supreme Court confirms the subjective element of the evasion. As an experienced businessman, the appellant could not have been unaware of the remunerative nature of the sums received. By failing to declare them as income, he at the very least accepted the possibility of an incomplete tax assessment through conditional intent, which is sufficient to satisfy the requirement of intent under Art. 175 DBG. (consid. 4.7, 4.8)
Issue
The Federal Supreme Court dismisses the appeal to the extent that it is admissible, regarding both direct federal tax and cantonal and communal taxes for the 2014 tax period. The conviction for tax evasion and the fines imposed are upheld. The legal costs, amounting to CHF 12,500, are to be borne by the appellant. (operative parts 1, 2, 3)
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