Federal Supreme Court, 01.10.2025, 9C_50/2025
Facts
The Federal Tax Administration (FTA) initiated administrative criminal proceedings against the director of A.________ AG for suspected VAT evasion for the 2015 and 2016 tax periods. On December 19, 2017, the company was notified of the initiation of these proceedings and that the statute of limitations for assessing the tax claim had been suspended.
Following its investigation, the FTA issued a criminal order against the director on June 21, 2022, for intentional tax evasion and, on the same day, notified the company of a VAT back-tax assessment of CHF 17,469 for the years 2015 and 2016.
The company's objection was largely rejected by the FTA, which also made an additional correction unfavorable to the taxpayer (reformatio in peius), increasing the claim to CHF 20,179. The Federal Administrative Court partially upheld the company's appeal but confirmed the substance of the back-tax assessment. The company appealed this latter decision to the Federal Supreme Court, invoking, among other things, the statute of limitations on the tax claim.
Legal Analysis
The Federal Supreme Court reiterates the rules regarding the statute of limitations for VAT claims. In accordance with Art. 105 para. 3 let. a in conjunction with Art. 42 of the VAT Act (VAT Act), the right to assess a tax claim expires five years after the end of the tax period (relative statute of limitations) and, in any event, ten years after the end of the tax period (absolute statute of limitations).
According to Art. 42 para. 4 of the VAT Act, the relative limitation period does not run (it is suspended) as long as criminal proceedings for tax evasion are pending for the tax period in question. The Federal Supreme Court clarifies that this suspension applies only to the five-year relative limitation period, while the ten-year absolute period continues to run.
Furthermore, the Federal Supreme Court recalls that its scope of review is limited regarding facts, which it reviews only for arbitrariness (Art. 97 para. 1 and 105 para. 2 of the Federal Supreme Court Act). Violations of constitutional rights must be supported by specific, qualified argumentation (Art. 106 para. 2 of the Federal Supreme Court Act).
Application to the Case
The Federal Supreme Court rejects the argument regarding the statute of limitations raised by the appellant. The criminal proceedings were notified to the company on December 19, 2017. From that date, the five-year relative limitation period for the 2015 and 2016 periods was suspended, in accordance with Art. 42 para. 4 of the VAT Act.
The ten-year absolute limitation period had not yet expired at the time of the back-tax assessment decision (it expires at the end of 2025 for the 2015 period and at the end of 2026 for the 2016 period). Consequently, the tax claim is not time-barred.
Regarding the appellant's other grievances (procedural defects, arbitrary assessment of evidence concerning various tax adjustments), the Federal Supreme Court deems them insufficiently substantiated. The appellant merely repeats its previous arguments without demonstrating clearly and in detail how the lower court's decision was arbitrary or violated the law. It therefore fails to meet the substantiation requirements of Art. 42 para. 2 and 106 para. 2 of the Federal Supreme Court Act.
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The legal costs are charged to the appellant company.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
