Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 23-29 April 2018.

  • Judgment of 29 March 2018 (2C_273/2018): State and Municipal Tax 2014 (St. Gallen); even if the collection invitation had been filled out incorrectly, which the taxpayer would have had to prove, the taxpayer would still have had more than one week after delivery of the normal letter post (A Mail) to write the complaint; this remaining period was sufficient to take action within the deadline, as no particularly demanding legal or factual question arose; rejection of the request to restore the deadline
  • Judgment of 12 April 2018 (2F_4/2018): Revision. If a party or its representative has been prevented from acting in due time for reasons other than the defective opening of the proceedings through no fault of its own, the time limit is restored in accordance with Art. 50 para. 1 FSCA, provided that the party requests this within 30 days of the removal of the obstacle, stating the reason, and makes up for the omitted legal act. Conditions not fulfilled in the present case; dismissal of the appellant's appeal.
  • Judgment of 9 April 2018 (2C_646/2017): Administrative assistance (DTA Switzerland - Netherlands); the decisive factor for identification by the requesting State is that it provides the requested State with sufficient information to enable the latter to identify the persons concerned without undue effort; the bank account number is only one example of a possible identification without mentioning names, such as the wording "[.... other identification information such as a bank account number but not excluded" is clearly expressed in BGE 143 II 136 E. 5.3.2; there is no reason to change the Federal Supreme Court's practice, which was recently established and confirmed in BGE 143 II 638 E. 5; the complainant also submits that, on the basis of the principle of proportionality set out in Art. The Netherlands has expressly confirmed that it is in a position to obtain and pass on to Switzerland the information in comparable cases; this also assures that the requesting State could also obtain the information under its domestic law and that the requirements of Art. 2 para. 1 lit. j aStAhiV and Art. 3 para. 1 lit. j StAhiV are fulfilled; dismissal of the complainant's appeal.
  • Judgment of 29 March 2018 (2C_959/2017): State and Municipal Taxes 2008 (Aargau); the four plots of land sold by the complainants, located entirely in the building zone, would only be subject to the material scope of application of the BGBB and would qualify as agricultural and forestry land within the meaning of Article 12(1) StHG if, at the material time of the sale, they had been overbuilt with agricultural buildings and installations and had become an agricultural business (within the meaning of Article 12(1) StHG). 7 BGBB), which is not the case; the plots of land are therefore not privileged (Article 12(1) StHG; § 27(4), § 106 StG/AG); the capital gain is subject to income tax; dismissal of the complainants' appeal.
  • Judgment of 29 March 2018 (2C_962/2017): State and Municipal Taxes 2012 (Aargau); in principle, the complainants correctly assume that the addition of an agricultural property for a different, non-agricultural business use (e.g. for the purpose of building on it or for commercial property trading) is, subject to a restructuring situation, a transaction similar to a sale within the meaning of § 96.2 lit. b StG/AG, on which the real estate profit tax is to be calculated and only the increase in value since then may be recorded for income tax purposes; however, if the allocation to a different use is not based on a change of use decided by the taxpayers but, as in the present case, on a rezoning, such a two-stage recording is only applied if the taxpayers request such a settlement at the time of the rezoning (and not only afterwards), due to problems of practicability and implementation; in view of the fact that the complainants did not request such a settlement at the time of the rezoning, the lower court correctly assumed that such a two-step settlement could be omitted and that the entire capital gain resulting from the sale of the plots in 2012 was to be recorded with income tax; dismissal of the complainants' appeal
  • Ruling of 4 April 2018 (2C_434/2017): Direct Federal Tax and Cantonal and Communal Taxes 2014 (Fribourg); a deduction of CHF 3,401. was claimed for maintenance costs of a property (of which CHF 961 was for the annual maintenance of the heating system and CHF 175 for the annual inspection of a water treatment system). Similarly to the distinction between rent and ancillary costs, when renting a property to third parties, only the maintenance costs that the owner has to bear himself by renting his building to third parties constitute deductible maintenance costs for own use (E. 4.2). Analogous application of Art. 257a and b CO, as well as Art. 5 f. of the Ordinance on the Rent and Lease of Residential and Commercial Premises (VMWG) with regard to the demarcation between rent and ancillary costs. To the extent that the claimed deductions relate to repairs, they are deductible as profit costs. However, insofar as they relate to maintenance costs, which are imposed on the tenant as ancillary costs in the case of a rental to third parties, they are not deductible (E. 4.5). Partial approval of the complainants' appeal.
  • Judgment of 12 April 2018 (2C_333/2017): Direct federal tax and cantonal and communal taxes 2002-2010 (Geneva); hidden profit distribution; the respondent (B. AG) made hidden profit distributions by paying translated prices for the rental of vehicles and troughs of the shareholder; approval of the complaint by the tax administration.
  • Judgment of 13 April 2018 (2C_233/2017): Direct Federal Tax and State and Municipal Taxes 2013 (Lucerne); the lower court rightly held that it was not possible to ascertain when the individual debt interest amounts had become due and at what time and to what extent they had been paid; the interest calculations submitted by the complainant end in 2008; under these circumstances, it is not objectionable that the lower court considers an accrual-based allocation of the interest owed to be impossible; the temporal connection between the creation of the respective debt, its due date and its settlement has not been established, which is contrary to the principle of accrual pursuant to aArt. 210 DBG or Art. 41 DBG and therefore excludes deductibility; on the other hand, under the given circumstances, it is not evident why the amount of CHF 24,000 transferred on 2 May 2013 should not be deductible in the 2013 tax period as a maintenance payment for minor children; the complainant has provided the necessary proof of the actual payment abroad for the benefit of his children living there without doubt; the complainant's appeal is partially upheld.

Non-occurrence decisions / inadmissible complaints:

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