TPF, 04.03.2026, BE.2024.17
Facts
On May 21, 2024, the Federal Tax Administration (FTA) opened a special tax investigation into A. for suspected serious tax offenses committed between 2014 and 2022. The FTA suspects A. of having concealed their actual place of residence in Geneva as well as the exercise of gainful employment in Switzerland, thereby unduly benefiting from lump-sum taxation in the canton of Valais since 2019.
On June 6, 2024, acting on orders from the FTA, searches were conducted at the premises of several companies owned by or linked to A., as well as at the offices of their tax representatives. Paper documents, data storage media, and forensic copies were seized. At A.'s request, all seized items were placed under seal.
On June 26, 2024, the FTA filed a request with the Appeals Chamber of the Federal Criminal Court to have the seals lifted. A. opposed this request, arguing that there were insufficient grounds for suspicion, that the evidence underlying the investigation was unlawful, and that the seized materials included documents protected by professional secrecy.
Legal Principles
The proceedings are governed by the Federal Act on Administrative Criminal Law (DPA), supplemented by the Criminal Procedure Code (CPP). The Appeals Chamber has jurisdiction to rule on a request to lift seals (art. 50 para. 3 DPA).
The Court's review is limited to the admissibility of the search. It must verify the existence of sufficient evidence and precise, objectively grounded suspicions justifying the coercive measure. At this stage, the Court does not assess the guilt of the accused, but rather examines whether the seized documents have "potential relevance" to the investigation.
The party opposing the lifting of seals has a duty to cooperate. If they claim that documents are irrelevant or protected by professional secrecy (lawyer, notary, physician), they must provide detailed justification, specifically identifying the documents in question and explaining why they are protected or irrelevant. General assertions are insufficient.
Regarding the admissibility of evidence (art. 141 CPP), it is not for the judge ruling on the lifting of seals to make a final determination, except in cases of manifest illegality (e.g., evidence obtained through torture). The final decision on the admissibility of evidence rests with the trial judge.
Application to the Case
The Court examined the three main arguments raised by A.:
- Lack of sufficient suspicion: The Court ruled that the suspicions put forward by the FTA were sufficient at this stage of the investigation. The FTA presented numerous objective, concrete, and precise elements (real estate purchase in Geneva, bank powers of attorney, directorships, administrative fines, frequent stock market transactions) that make the existence of an undeclared residence and gainful activity in Switzerland plausible. A.'s explanations were insufficient to dispel these suspicions. The Court also found that the seized documents (correspondence, contracts, accounting records, etc.) were clearly potentially relevant to establishing the facts.
- Inadmissibility of evidence: A. argued that the FTA's investigation was based on bank documents illicitly transmitted by the Office of the Attorney General of Switzerland (OAG) in the context of another proceeding. The Court declined to rule on the merits of this issue, reiterating that its role is not to anticipate the trial judge's decision on the admissibility of evidence. It noted that this was not a case of manifest illegality that would justify the immediate exclusion of the evidence.
- Breach of professional confidentiality: A. made general claims regarding the presence of documents covered by attorney-client, notary-client, and physician-patient privilege without providing details. The Court deemed these allegations manifestly insufficient. By failing to name any professionals, describe the nature of any mandates, or indicate the location of the allegedly protected documents, A. failed in their duty to cooperate. The Court is therefore not required to search for potentially protected documents on its own initiative.
Outcome
The Complaints Chamber granted the FTA's request. It ordered the unsealing of all seized documents and data storage media and their handover to the FTA for the purposes of the investigation. The costs of the unsealing proceedings were joined to the main proceedings.
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