Burden of proof for the filing of objections

If there are errors in the assessment, the taxpayer can lodge a written objection against the tax assessment notice within 30 days of delivery. The burden of proof that the objection has been fully and timely received by the authorities lies with the taxpayer in the event of a dispute. However, with a receipt confirmation from the tax administration, the burden of proof is considered satisfied.

Errors in the assessment must be indicated by submitting a written objection to the assessment authority within 30 days after the delivery of the assessment. The thirty-day period begins the day after the notice is issued. If the last day of the period falls on a Saturday, Sunday, or public holiday recognized by the state, it ends on the next working day. The deadline is considered met if the objection is received by the assessment authority on the last day of the deadline, or handed over to the Swiss Post or a Swiss diplomatic or consular representation abroad. The responsibility, or burden of proof, that the objection is submitted/received on time lies with the taxpayer. On November 12, 2018, the federal judges ruled on case 2C_166/2018, which was about the deadlines and burden of proof for lodging objections due to apparent inaccuracies. A public company liable for taxation in the canton of Appenzell Ausserrhoden was assessed by the cantonal tax administration for the tax periods 2013 and 2014 by discretion. The tax assessment notice was received by the company on April 19, 2016. Subsequently, they had 30 days to object, which they did on May 18, 2016, submitting their tax returns for 2013 and 2014 including financial statements and other documents to the authorities to contest the assessment due to apparent inaccuracy. The tax administration confirmed the receipt of the "Documents for the year 2013 and 2014" on May 20, 2016. On July 5, 2016, however, they informed the company that the documents for the tax period 2014, whose receipt they had confirmed on May 20, had not arrived and requested them to submit it by July 18, 2016. Since the taxable company had staff holidays at that time, they requested an extension of the deadline until July 28. The authorities did not respond. The company resubmitted the documents on July 28, 2016. The tax authorities decided on November 16, 2016, not to consider the objection because the deadline had already expired on July 28.

The company contested this and took the case to the Federal Court, as the Higher Court of the Canton of Appenzell Ausserrhoden upheld the procedure of the tax administration. However, the Federal Court disagreed. The burden of proof of the existence of a claimed fact lies with the one who derives rights from it. The same party also bears the burden of proof for compliance with the deadline. With the confirmation from the tax administration on May 20, 2016, that they had received the "Documents for the year 2013 and 2014," the company had met their burden of proof. To determine whether the documents for the year 2014 were included, only a superficial examination of the submitted documents was necessary. A person reasonably familiar with the matter should be able to tell at first glance whether a tax return for the respective year was included with the objection documents.

Also, the 30 days are a statutory deadline, which the tax administration should not have extended. Therefore, the extension of the deadline until July 18 is an administrative deadline, which should be extended if there are sufficient reasons and the request for the extension is made within the deadline. The behavior of the tax administration, first confirming the receipt of the documents and thereby the observance of the statutory objection deadline, then setting a (administrative) grace period due to the absence of these documents, not responding to a timely and justified request for an extension of deadline, and finally nearly four months later rejecting the objection due to non-compliance with the cooperation obligation by not submitting these documents on time, is deeply disturbing and appears overly formalistic. The Federal Court concluded that setting the further deadline indicated that the tax administration also did not exclude that the documents had been previously received but could no longer be found.

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