Federal Supreme Court, 01.10.2025, 9C_48/2025
Facts
In November 2017, the Federal Tax Administration (FTA) initiated administrative criminal proceedings against B.B., a director of Company A. AG (the appellant), for VAT evasion concerning the 2012 to 2016 tax periods. A search was conducted, and the appellant was notified of the initiation of proceedings and the resulting suspension of the statute of limitations for the tax claim.
In June 2022, the FTA convicted B.B. of intentional tax evasion and issued a supplementary tax assessment against the company for CHF 87,943. Following a partially upheld objection, the company appealed to the Federal Administrative Court (FAC). The FAC partially upheld the appeal, ruling in particular that the tax claims for 2012 and 2013 were time-barred.
Company A. AG filed a public law appeal with the Federal Supreme Court (FSC), primarily seeking the annulment of the FAC's decision on the grounds that the tax claims for the years 2014 to 2016 were time-barred.
Legal Analysis
The dispute centers on the statute of limitations for VAT claims in the context of criminal proceedings.
According to Art. 105 para. 3 let. a of the VAT Act (VAT Act), in cases of tax evasion (Art. 96 VAT Act), the statute of limitations for tax claims is governed by Art. 42 VAT Act. This article provides for a relative limitation period of five years (para. 1) and an absolute limitation period of ten years (para. 5) after the end of the tax period.
In accordance with Art. 42 para. 4 VAT Act, the relative limitation period does not run (suspension) while tax criminal proceedings are pending for the relevant tax period. Conversely, the absolute ten-year limitation period continues to run and cannot be suspended or interrupted.
The decisive moment for the suspension of the relative period is the initiation of criminal proceedings, not any prior criminal report.
Application to the Case
The Federal Supreme Court rejected most of the appellant's arguments, deeming them insufficiently substantiated or irrelevant, as the appellant merely repeated previous arguments without addressing the reasoning of the lower court.
Regarding the central issue of the statute of limitations, the FSC confirmed that the applicable regulations are those of Art. 105 para. 3 let. a in conjunction with Art. 42 VAT Act, as the FTA itself classified the facts as simple tax evasion (Art. 96 VAT Act) in its criminal decision.
The notification of the initiation of criminal proceedings to the appellant on December 19, 2017, had the effect of suspending the five-year relative limitation period for the 2014 to 2016 tax periods.
However, the absolute ten-year limitation period continued to run. For the 2014 tax period, this period began at the end of 2014 and expired at the end of 2024. At the time of the Federal Supreme Court's ruling (October 2025), the tax claim for 2014 is therefore time-barred under the absolute limitation period.
For the 2015 and 2016 tax periods, the absolute limitation period has not yet expired. The related claims are therefore not time-barred.
Outcome
The Federal Supreme Court partially upheld the appeal. It annulled the Federal Administrative Court's decision regarding the 2014 tax period, finding that the corresponding tax claim is time-barred. The remainder of the appeal was dismissed. Court costs are divided between the appellant (three-quarters) and the FTA (one-quarter).
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
