TF, 01.10.2025, 9C_49/2025
Facts
Following an administrative criminal investigation into VAT evasion opened in 2017 against the administrator of A.________ AG, the Federal Tax Administration (FTA) conducted an audit. This audit resulted in a tax assessment (VAT) of CHF 23,177 for the 2013 to 2017 tax periods, primarily due to undeclared constructive dividends and unjustified input tax deductions.
The company contested this amount, admitting to a debt of CHF 11,267.45. Its objection, and subsequent appeal to the Federal Administrative Court, were rejected. A.________ AG appealed to the Federal Supreme Court, requesting the cancellation of the tax claim and citing various violations of its procedural rights as well as the statute of limitations on the claim.
Law
The Federal Supreme Court reiterates the requirements for substantiating an appeal in public law matters (Art. 42 para. 2 and Art. 106 para. 2 LTF). The appellant cannot simply repeat arguments already presented to lower courts or criticize the contested decision in an appellatory manner. It must demonstrate, by referring to the reasoning of the challenged judgment, how that judgment violates the law.
Regarding the statute of limitations for VAT claims, the right to assess tax expires five years after the end of the tax period (relative statute of limitations, Art. 42 para. 1 LTVA). This period is suspended for the duration of an administrative criminal proceeding for tax evasion (Art. 42 para. 4 LTVA). However, the right to assess tax expires in any case ten years after the end of the tax period (absolute statute of limitations, Art. 42 para. 5 LTVA). The Federal Supreme Court clarifies that the suspension provided for in Art. 42 para. 4 LTVA applies only to the relative limitation period and not to the ten-year absolute limitation period.
Application to the specific case
The Federal Supreme Court finds that the majority of the appeal is insufficiently substantiated. The appellant merely repeats its previous arguments without addressing the reasoning of the contested judgment, particularly regarding the assessment of evidence concerning constructive dividends and input tax deductions. On these points, the appeal is inadmissible or manifestly ill-founded.
However, the Federal Supreme Court examines the issue of the statute of limitations ex officio. The opening of criminal proceedings on December 19, 2017, suspended the five-year relative limitation period for the 2013 to 2016 periods. However, the ten-year absolute limitation period continued to run. Consequently, the tax claim for the 2014 period, which began on January 1, 2015, was time-barred at the end of 2024. For the 2015 and 2016 periods, neither the relative (suspended) nor the absolute statute of limitations had expired at the time of the decision.
Outcome
The Federal Supreme Court partially allows the appeal. It finds that the tax claim for the 2014 period is time-barred due to the expiration of the ten-year absolute limitation period. The judgment of the Federal Administrative Court is therefore set aside on this point. For the remainder, the appeal is dismissed. Legal costs are borne by the appellant, who only partially succeeds.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
