Moti­on Mül­ler-Alter­matt (13.3696): Real data pro­tec­tion instead of a shield for tax cheats

Moti­on Mül­ler-Alter­matt (13.3696): Real data pro­tec­tion instead of a shield for tax cheats
Rejec­ted (24.09.2015)

Sub­mit­ted text

The Fede­ral Coun­cil is ins­truc­ted to sub­mit a bill regar­ding the coll­ec­tion of tax debts, with which:

1. the Tre­a­su­ry shall have the same pos­si­bi­li­ties for the coll­ec­tion of its claims as cre­di­tors of claims under pri­va­te law. Fur­ther­mo­re, bank­rupt­cy pro­ce­e­dings for taxes, levies, fees, etc. shall be exclu­ded. (Art. 43 SchKG);

2. a pro­ce­du­re and cri­te­ria are defi­ned accor­ding to which data of tax debtors may be made publicly available.

Justi­fi­ca­ti­on

For can­tons and muni­ci­pa­li­ties, the coll­ec­tion of taxes is an ever grea­ter chall­enge. The decre­a­sing payment mora­le and the stron­gly deve­lo­ped data pro­tec­tion lead to ever grea­ter out­stan­dings for taxes and fees.

In its respon­se to Postu­la­te 13.3482, “Legal basis for the tax pil­lo­ry,” the Fede­ral Coun­cil empha­si­zes that the legis­la­tu­re has always refrai­ned from “pro­vi­ding the Tre­a­su­ry with spe­cial means of coll­ec­ting its public-law claims that are not available to cre­di­tors of pri­va­te-law claims.” In fact, howe­ver, the public sec­tor has mas­si­ve­ly fewer opti­ons than pri­va­te cre­di­tors. Pri­va­te cre­di­tors can exert pres­su­re on the debtor through public noti­ce, and to avo­id fur­ther defaults, they can stop pro­vi­ding ser­vices. A muni­ci­pa­li­ty, for exam­p­le, can do neither. Data pro­tec­tion auto­ma­ti­cal­ly leads to a shield for tax cheats. The pre­sent moti­on thus mere­ly demands the estab­lish­ment of the equal tre­at­ment men­tio­ned by the Fede­ral Council.

In order to resol­ve the con­flict of objec­ti­ves bet­ween per­so­nal pro­tec­tion and tax eva­si­on, a clear pro­ce­du­re should be defi­ned accor­ding to which the data of tax debtors may be made public (e.g. obli­ga­ti­on to threa­ten publi­ca­ti­on, pri­or debt coll­ec­tion, cla­ri­fi­ca­ti­on of per­so­nal cir­cum­stances, etc.). Like­wi­se, it should be cle­ar­ly defi­ned which data is to be published so that no exce­s­si­ve con­clu­si­ons can be drawn about the debtor’s circumstances.

The­se amend­ments would not have the effect of giving the fede­ral govern­ment, can­tons and muni­ci­pa­li­ties rights that would beco­me a harass­ment of honest tax­payers or distres­sed debtors. They would, howe­ver, remo­ve the unju­sti­fi­ed shield of inher­ent­ly sol­vent tax evaders.

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h1>Statement of the Fede­ral Council

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Under cur­rent law, the enforce­ment of pri­va­te or public law claims for mone­ta­ry payments must always be car­ri­ed out by way of the Fede­ral Debt Coll­ec­tion and Bank­rupt­cy Act of April 11, 1889 (SchKG; SR 281.1). Accor­din­gly, the Swiss tax laws also refer to the SchKG for the enforce­ment of tax claims. In prin­ci­ple, the SchKG pro­vi­des both pri­va­te law cre­di­tors and the tax aut­ho­ri­ties as public law cre­di­tors with the same means of coll­ec­tion for the reco­very of their mone­ta­ry claims. In various can­tons, moreo­ver, cer­tain can­to­nal taxes that are direct­ly rela­ted to a pro­per­ty are secu­red by a sta­tu­to­ry lien on real pro­per­ty that takes pre­ce­dence over other liens, based on the reser­va­ti­on in Artic­le 836 of the Civil Code. This means is not available to pri­va­te cre­di­tors. Howe­ver, the­re is a dif­fe­rence in Artic­le 43 SchKG, which is men­tio­ned by the peti­tio­ner as to be main­tai­ned and which exclu­des bank­rupt­cy pro­ce­e­dings for tax claims. Con­se­quent­ly, tax claims must con­ti­n­ue to be enforced by way of sei­zu­re or pledge. Moreo­ver, in the case of bank­rupt­cy pro­ce­e­dings, the claims of the tax aut­ho­ri­ties, like most pri­va­te claims, rank in the third class of col­lo­ca­ti­on. Only VAT claims will be col­lo­ca­ted in the second class until the new reor­ga­nizati­on law comes into force (pro­ba­b­ly on Janu­ary 1, 2014). Fur­ther pri­vi­le­ges of the sta­te in the con­text of the enforce­ment of tax claims are the sei­zu­re (Art. 44 SchKG), the tax arrest as well as the fact that the tre­a­su­ry can its­elf eli­mi­na­te the legal pro­po­sal against cer­tain legal­ly enforceable tax claims (cf. Art. 86 MWSTG). Thus, apart from the rest­ric­tion pro­vi­ded for in Artic­le 43 SchKG, the tax aut­ho­ri­ties basi­cal­ly have the same, or in some cases even more, means of coll­ec­tion at their dis­po­sal as cre­di­tors of pri­va­te-law claims. The first con­cern of the moti­on is thus alre­a­dy ful­fil­led under cur­rent law.

The motio­ner men­ti­ons addi­tio­nal pos­si­bi­li­ties of pri­va­te cre­di­tors to put pres­su­re on debtors, e.g. sus­pen­si­on of bene­fits. It is in the natu­re of things that the tre­a­su­ry can­not sus­pend bene­fits. Taxes are owed wit­hout tax­payers being able to expect any con­side­ra­ti­on direct­ly attri­bu­ta­ble to them from the govern­ment. Howe­ver, in the case of other public char­ges, i.e. tho­se levied for a spe­ci­fic govern­ment ser­vice, it is quite com­mon to coll­ect them in advan­ce (e.g. court fees).

Accor­ding to the appli­ca­ble tax legis­la­ti­on, all per­sons ent­ru­sted with the enforce­ment of tax laws are obli­ged to main­tain sec­re­cy about the fin­dings made in the pro­cess and about the cir­cum­stances of the tax­payers (cf. Art. 110 of the Fede­ral Law on Direct Fede­ral Tax of 14 Decem­ber 1990, DBG; SR 642.11). This tax sec­re­cy, cir­cum­scri­bed in Artic­le 110 DBG, is an out­growth of one of the most important foun­da­ti­ons of Switz­er­land, name­ly the mutu­al trust bet­ween citi­zen and sta­te. If the sta­te were to reser­ve the right to publish tax infor­ma­ti­on in cer­tain cases, even though it requi­res full dis­clo­sure of finan­cial cir­cum­stances from its citi­zens as part of the assess­ment pro­ce­du­re, it would jeo­par­di­ze this rela­ti­on­ship of trust. Inso­far as the peti­tio­ner only intends to relax this tax sec­re­cy for “inher­ent­ly sol­vent” tax­payers, the Fede­ral Coun­cil is the­r­e­fo­re of the opi­ni­on that the means of the SchKG should be pre­fer­red. In the case of “inher­ent­ly sol­vent” debtors, the­se ulti­m­ate­ly lead to suc­cess (i.e. to the coll­ec­tion of the mone­ta­ry debt) if applied con­sist­ent­ly. Ulti­m­ate­ly, it is usual­ly only in this way that it beco­mes appa­rent who is basi­cal­ly sol­vent and who is not.

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