Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 19 - 25 March 2018.

  • Judgment of 5 March 2018 (2C_387/2016): Administrative assistance (DTA Switzerland - Sweden); in its request for administrative assistance, the requesting state (Sweden) wishes to know whether a taxpayer holds a company's account with a Swiss bank indirectly through close relatives or via third parties by requesting information from Switzerland in order to investigate possible access to this account by the taxpayer or by other persons close to him (personnes proches); in accordance with Art. 4 para. 3 StAhiG, the transmission of information on persons who are not data subjects is inadmissible if this information is not likely to be relevant for assessing the tax situation of the data subject or if legitimate interests of persons who are not data subjects outweigh the interest of the requesting party in the transmission of the information. By interpreting the concept of "related persons" (personnes proches) in such a way that this concept only includes persons from the taxpayer's family who are determined by their surname, the Federal Administrative Court correctly applied Art. 4 para. 3 StAhiG (E. 5.2). Dismissal of the appeal by the Federal Tax Administration (FTA).
  • Judgment of 6 March 2018 (2C_470/2017): Direct federal tax and cantonal and communal tax 2009 (Geneva); the complainant is the sole shareholder of Y. SA; her husband, from whom she has been separated for several years, has been the sole director of the company since its creation and is now its liquidator; the latter granted himself a loan of CHF 3,948,254, representing 99% of the company's assets; the loan was not repaid and was written off in 2009 (bad debt loss). The complainant claims to have been harmed by her husband and thus not to have had an "animus donandi", which excludes a hidden distribution of profits and thus the set-off of CHF 2'368'952 (60% due to partial taxation) against her income. In such a case, however, the absence of legal proceedings leads to the conclusion that there was a hidden distribution of profits. Remittal to the lower court to examine whether it was reasonable for the company to initiate legal proceedings.

Non-occurrence decisions / inadmissible complaints:

  • Judgment of 6 March 2018 (2C_216/2018): Direct Federal Tax and State and Municipal Tax 2015 (Solothurn); the taxpayer accused the tax authorities of lying and fraud (because of "forged arrest warrant", "forged debt collection", "deliberately false judgements", "deliberate fraud", "unscrupulous allegations of the tax court", "racist background"); the objections raised do not satisfy the qualified duty to complain and to state reasons; the taxpayer's complaint is not upheld.
  • Judgment of 2. March 2018 (2C_195/2018): Direct Federal Tax and State and Municipal Tax 2009 (Lucerne); double taxation; in practice, there is a natural presumption for the proper delivery of the pick-up invitation (in the letterbox, in the P.O. box); this must also apply accordingly to the "A-Post Plus" procedure; it is therefore incumbent on the taxpayer to rebut the natural presumption; the objections raised do not satisfy the qualified obligation to make a complaint and state reasons; the taxpayer's complaint will not be taken into account.
  • Judgment of 14 March 2018 (2C_223/2018): Administrative assistance (DTA Switzerland - Netherlands); appeal against the interim order of the Federal Administrative Court of 21 February 2018 (A-5694/2017); no response to the appeal by the Federal Tax Administration (FTA), Service for Exchange of Information on Tax Matters (SEI).

Decisions are listed chronologically by publication date.

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