Invalidity of tax assessments

Taxpayers were taxed by assessment from 2005 to 2012.

In 2012, taxpayers requested a review of their tax assessments from 2005 to 2012, which the tax authorities refused in 2013.
In 2015, taxpayers requested the reinstatement of the claim deadline and filed their tax returns for 2006 to 2012. The tax authorities (Bernese tax office) only considered periods from 2010 to 2012 in 2015.
In 2018, taxpayers requested that the tax assessments from 2006 to 2009 be declared null and void, which the tax administration rejected in 2019. This decision was taken to court.

The tax appeals commission rejects the taxpayers' appeal, but additionally declares the 2010, 2011 and 2012 tax assessments revised in 2015 (which were not the subject of the appeal) null and void…

A decision is, in principle, voidable. However, decisions are null and void if their inherent defect is particularly serious, manifestly or at least easily recognisable, and legal certainty is not seriously jeopardised by declaring them null and void (cons. 4.1 – reminder of case law). Nullity must be declared at any time and ex officio (cons. 4.2).

Both the decision of the appeals commission regarding the tax periods 2010 to 2012 and that of the TC-BE on the same subject were void (para. 5.3.2).

A tax is void when the taxing authority, for fiscal and punitive reasons, knowingly and arbitrarily deviates from the contributory capacity of the subject and determines the taxable elements to the detriment of the taxpayer (recital 6.3).

The successive seizures, at the request of the tax authorities, brought to the attention of the tax authorities the income and wealth of taxpayers and their evolution over time. The tax authorities never took these elements into consideration and on the contrary increased the taxation factors year after year (para. 6.5 et seq.).

There is therefore a punitive element to taxation when the tax authorities, year after year, unreasonably increase the taxation factors (recital 6.7.3).

To note that the 2006-2009 tax assessments are void due to the tax authority's behaviour is appropriate (see 6.9 et seq.).

The ruling is in German. It concerns a case from Bern.

Federal Tribunal, judgement 9C_673/2023, of 19 August 2024