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.