Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 29 October - 4 November 2018.
- Judgment of 5 October 2018 (2C_119/2017): Value Added Tax (VAT), tax period 2013; the appellant's observations do not explain to what extent the holiday home was used for business (e.g. representation) rather than private purposes by the main shareholder. The reference to the investment is irrelevant. Any investment in an object of value can also be considered an investment of money. Not only the former holiday home, but also vehicles or aircraft can be sold at a profit. Nevertheless, in the case of an (almost) exclusive use of these objects of value by the beneficial owner of the company, the Federal Supreme Court case law assumes that the use is private and not business. If a holiday home is used for purely private purposes, in such constellations, in practice the only motive for registering for VAT in such cases is to save tax. If the main shareholder had wished to achieve this objective without the intermediary of his own company, which is the subject of the present discussion, he would have had to rent the property or purchase it personally. It is obvious that the main shareholder, as a tenant or private owner or non-business end user, would not have been able to deduct the input taxes in connection with the aforementioned investments in the property. Under these circumstances, it can be assumed that the acquisition of the property by the company was made solely with the intention of obtaining a minimum tax burden and thus a payout of the input tax deduction. The previous instance was therefore right to affirm a tax avoidance. Dismissal of the complainant's appeal.
- Judgment of 9 October 2018 (2C_852/2018): Direct federal tax and state and municipal taxes 2015 (Zurich). Contrary to the opinion of taxpayers, there is no reason to object to the fact that the KStA/ZH moved towards a discretionary surcharge. The taxpayer would have had to provide evidence of incorrectness and point out gross methodical or arithmetical errors. The complainant's complaint turns out to be unfounded and must be dismissed.
- Judgment of 10 September 2018 (2C_540/2017): Property gains tax (Lucerne); the cantonal legislator is largely free to define the term "substitute value" in Art. 12 para. 1 StHG. The taxpayer filing the complaint cannot therefore be followed if, in determining the substitute value under Art. 12 para. 1 StHG, it wishes to infer an obligation on the part of the cantons to calculate the market value. The federal legislature would have explicitly enshrined in Art. 12 StHG if it had wanted to declare the market value as a substitute value to be binding, as it does for property tax under Art. 14 para. 1 StHG. Accordingly, it is in accordance with the provisions of the StHG if the legal order of the Canton of Lucerne provides for the cadastral estimate existing 30 years ago as the acquisition price in the case where the relevant acquisition took place more than 30 years ago (cf. also judgment 2C_147/2008 of 29 July 2008 E. 2.2). Dismissal of the taxpayers' appeal.
Non-occurrence decisions / inadmissible complaints:
- Judgment of 18 October 2018 (2C_926/2018): Water, sewage and refuse charges 2017 (Bern; Einwohnergemeinde U.); the appeal will not be considered.
Decisions are listed chronologically by publication date.
