Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 22 - 28 October 2018.
- Judgment of 5 October 2018 (2C_993/2017): State and Municipal Taxes 2013 (Aargau); the property concerned in the present case was subject to the BGBB, although a small part of it was located in the building zone (Art. 2 para. 2 lt. c BGBB); in October 2013, the complainants parceled out parcel no. yyy, which was located entirely in the building zone, without any buildings necessary for the operation of the business, and sold this parcel to the complainant's brother at a preferential price of CHF 10,400; this did not involve a transfer from the business assets to the private assets, but a direct sale from the business assets of the complainants to the private assets of the buyer; in particular, there was also no (mixed) gift to the brother, which would require a prior private withdrawal; taxable event within the meaning of Art. 8 para. 1 StHG is therefore not a private withdrawal, but a sale; thus, there is no legal ground for a tax settlement based on a private withdrawal; furthermore, the sold property was not agricultural at the time of the sale; thus, the new parcel no. yyy, located entirely in the building zone, was excluded from the scope of application of the law (Art. 2 para. 1 lit. a BGBB e contrario); the profit from the sale is therefore subject to income tax; however, it is not evident why a profit of CHF 163,051 should be offset: According to the findings of the lower instance, the sales price amounted to CHF 10,400; that the purchaser had rendered further services to the complainants in connection with the purchase contract has neither been established by the lower instance nor otherwise submitted by anyone; it must therefore be assumed that the proceeds relevant for tax purposes correspond to the sales price stipulated in the contract, whereby according to the submissions of the complainants, which are in agreement with the findings of the Special Administrative Court, a share of CHF 2,135 for development costs must be added to the CHF 10,400, so that a total purchase price of CHF 12,535 results; for the calculation of the profit, the book value of the property is to be deducted from this, which according to the Special Administrative Court amounted to CHF 577; the Special Administrative Court also mentions notary costs of CHF 1,138 as well as a replacement acquisition provision of CHF 10,819 as expenses; thus, no taxable profit remains that would have to be recorded with income tax; appeal of the complainants approved; the judgment of the Administrative Court of the Canton of Aargau of 3 October 2017 is set aside. October 2017 is set aside and the judgment of the Special Administrative Court for Taxes of 27 April 2017 is upheld.
- Judgment of 8 October 2018 (2C_761/2018): Direct federal tax (tax period 2012); the taxpayer capitalised a current account in his sole proprietorship at the end of the 2012 financial year in the amount of CHF 36,213.30 in relation to the AG (founded: 23 August 2012) in which he holds 100% of the shares, which he immediately adjusted by CHF 36,183.70. The business justification for the value adjustment on the current account balance ("loan" of the sole proprietorship to the AG) was disputed. Due to sufficient liquid assets of the AG in the amount of CHF 99,800, immediate repayment within the statutory period (according to Art. 318 OR within six weeks of the first demand) would have been possible without restriction. There were also no significant receivables from third parties in the AG. The principle of prudence does not imply otherwise either, as at the relevant time there were no reasonable doubts about the solvency of the AG. The value adjustment does not appear to be justified under either commercial or tax law. Rejection of the taxpayer's complaint.
- Judgment of 8 October 2018 (2C_503/2017): A winegrower (the taxpayer) (not registered in the Commercial Register) sells his vineyard (vineyards, buildings, etc.) to a public limited company controlled by him. For this transaction, the cantonal tax authorities levy the property transfer tax. According to Art. 103 FusG, the levying of cantonal and communal property transfer taxes in the case of restructuring within the meaning of Art. 8 para. 3 and Art. 24 para. 3 and 3quater StHG is excluded. The transfer of a business or part of a business to a legal entity constitutes a tax-neutral restructuring pursuant to Art. 8 para. 3 lit. b. However, the transfer of assets pursuant to Art. 69 FusG requires that the transferring legal entity is entered in the Handle Register, which is not the case for the taxpayer in the present case. Rejection of his complaint.
- Judgment of 11 October 2018 (2C_343/2018): Article 2(6) of the Tobacco Tax Ordinance (TStV) is contrary to federal law (E. 4.6). This is intended to tax tobacco for water pipes in accordance with Annex IV of the Tobacco Tax Act (TStG) concerning smoking tobacco other than fine-cut tobacco and other manufactured tobacco (roll-your-own tobacco, cigar cuttings and others) as well as chewing tobacco and snuff. Dismissal of the complaint of the Federal Customs Administration.
Decisions are listed chronologically by publication date.
