The Tax Administration of the Canton of Basel-Stadt has published its tax practice (BStP) December 2017 edition.
The tax administration of the canton of Basel-Stadt devotes the following decisions in the published BStP issue December 2017:
- Judgment of the Steuerrekurskommission of the Canton of Basel-Stadt of 27 April 2017 (STRK.2015.111): Real estate gains tax, cost value, anticipated inheritance; for the purposes of real estate gains tax, the amount by which the proceeds of the sale exceed the cost value is deemed to be the real estate gain. The cost value is generally the acquisition value, taking into account the costs associated with the acquisition and the value-enhancing expenses, insofar as these could not already be offset against income or profit tax. Only the publicly certified purchase sum can be decisive for determining the purchase price. Additional agreements which do not comply with the formal requirement of public notarisation required for real estate transactions are irrelevant for the determination of the cost price (BStP 2017, No. 13)
- Judgement of the Administrative Court of Basel-Stadt of 20 October 2016 (VD.2016.135): Real estate profit tax, brokerage commission; the rule according to which so-called own commissions, i.e. compensation for one's own buying or selling efforts cannot be deducted from the real estate profit achieved, does not mean that brokerage contracts between a corporation and one of its shareholders or between sister companies are excluded from the outset. However, in the case of economic links between the seller of the property and the broker, it must be checked whether there is a simulation or tax avoidance. In the case of a brokerage agreement between the seller of the real estate and a person economically linked to the seller, the case law of the administrative court assumes tax avoidance and therefore denies the deductibility of the brokerage commission if it must be concluded from the circumstances that the taxable seller would not have concluded the same agreement with an uninvolved third party. The efforts required for the deductibility of the broker's commission must be documented, e.g., by appropriate sales documentation (BStP 2017, No. 14).
- Judgement of the Administrative Court of Basel-Stadt of 10 April 2017 (VD 2015.149 and 150): Procedure, principle of investigation, duty to cooperate, distribution of the burden of proof, consequences of the lack of evidence; Due to the principle of investigation applicable in the mixed assessment procedure, the tax authority has the burden of proof. For a legal assessment, the tax authority is dependent on the cooperation of the taxpayer in the official investigation of the facts, due to the assessment procedure based on mass administration and the limited means of investigation, whereby the principle of investigation is supplemented by the principle of the cooperation of the taxpayer. The question of who bears the objective burden of proof must be answered separately from the principle of investigation and the principle of cooperation. According to the rules on the objective burden of proof, it must be determined who has to bear the consequences of the lack of evidence if the required level of evidence has not been reached, i.e. if the evidence for a legally relevant fact has failed. The taxpayer bears the objective burden of proof for facts that cancel or reduce tax, while the tax authority bears the burden of proof for facts that give rise to tax or increase tax (BStP 2017, no. 15).
- Federal Supreme Court ruling of 13 November 2017: Proceedings, advance payment of costs, failure to observe a time limit, restoration of a time limit; request for an advance payment of costs: The time limit (incl. extension of time limit or grace period) for the payment of an advance payment of court costs in direct tax proceedings is not regulated by federal law (DBG/StHG). Cantonal procedural law is therefore applicable. If it is bindingly established in casu that the taxpayer had issued a retention order to Swiss Post, there is no constitutional objection if the lower court assumed that the fictional delivery was valid, since the taxpayer had to expect that the request would be served. The dismissal of the application for restitution of the deadline for the payment of the advance on costs and the non-occurrence of the appeal were therefore justified (BStP 2017, no. 16).
The BStP issue December 2017 is available here.
