Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 17 to 23 April 2017.
- Judgment of 21 March 2017 (2C_404/2016); official publication provided: withholding tax; the question in dispute was whether the lower court had rightly confirmed the FTA's decision not to intervene in the case concerning the complainant's request that a challengeable order be served on her (E. 2); according to a long-standing case law of the Federal Supreme Court, the payment of the self-assessed tax without reservation has the effects of a final decision for the taxpayer, which the taxpayer can only challenge if there is a reason for revision (E. 2.4); in the present case, the complainant had not made an express reservation regarding the payment (E. 4.1); the FTA's request for payment of withholding tax from the offsetting of payments of monetary value, which has been complied with without reservation, does not constitute an order in the present case (E. 4.2.1 f.); on the basis of a teleological interpretation, the payment of withholding tax without reservation cannot be equated with a final decision without a corresponding official order (change in case law, E. 4.3.3); approval of the appeal and rejection of the FTA (E. 5).
- Judgment of 27 March 2017 (2C_317/2017): Re-opening proceedings concerning direct federal tax 2009; appeal against the decision of the lower court not to enter an appeal; dismissal.
- Judgment of 31 March 2017 (2C_323/2017): Administrative assistance (DTA Switzerland - USA); no legal issue of fundamental importance or infringement of fundamental procedural principles (E. 4.1 f.); dismissal of the appeal.
- Judgement of 3 April 2017 (2C_336/2017): State and municipal taxes 2012 and 2013 of the Canton of Aargau, direct federal tax 2012 and 2013, administrative fines; appeal does not satisfy the qualified obligation to give notice of defects and to state reasons as to the extent to which the taxpayer has not been reminded (E. 3.3); dismissal of the appeal
- Judgement of 3 April 2017 (2C_838/2016): Fees (invoice from the municipality concerning road maintenance to the recipient of a building permit); the contested judgement does not mention any legal provision on which the claim of the municipality should be based and whether it concerns damages or a fee (E. 3.2); no examination of the complaints of the complainants possible (E. 3.3.); approval of the complaint and rejection to the lower instance (E. 4).
- Judgement of 6 April 2017 (2C_545/2016, 2C_546/2016): Direct federal tax and state and municipal taxes 2006 (Vaud); sale of a physiotherapy practice incl. goodwill of 85% (due to a prohibition of competition in geographical terms); requirement of a replacement purchase within the meaning of Art. 8 para. 4 StHG and Art. 34 StG/VD (E. 4.3); sale of goodwill as a replacement for operationally necessary fixed assets denied; dismissal of the appeal directed at the 2006 direct federal tax; partial approval of the appeal directed at the 2006 state and municipal taxes (due to the missing factors and the amount of the remaining replacement purchases allowed in the contested lower court ruling).
- Judgement of 30 March 2017 (2C_961/2016): Refund of surcharges on transmission costs of high-voltage grids under Art. 15bbis EnG (Energy Act); appeal against the judgement of the Federal Administrative Court of 31 August 2016 (A-2421/2015); dismissal of the appeal.
- Judgement of 31 March 2017 (2C_1087/2016): Administrative assistance (DTA Switzerland - France); exchange of information on account balances (asset status); appeal upheld; the judgement of the Federal Administrative Court of 10 November 2016 (A-1230/2016) is partially overturned; in the present case, the transfer of information under Art. 28 of the Double Taxation Treaty between Switzerland and France was lawful; with regard to the temporal scope, information on the asset status as at 31 December 2009 must also be transferred.
- Judgement of 31 March 2017 (2C_622/2016): Administrative assistance (DTA Switzerland X); DTA contracting state was anonymised; procedural costs; written off as irrelevant.
- Judgment of 3 April 2017 (2C_842/2016): cantonal and communal taxes 2011 (St. Gallen); estate planning; the parents made a gift of CHF 3,000,000 to each child as of 15 December 2011, whereas the children undertook to grant the parents each a loan of CHF 2,000,000 as of 16 December 2011 (to bear interest at 1.5 %); the recognition of the children's loan as a debt (deduction from taxable assets) to the parents was questionable; the gifts were made with a view to a possible adoption of the inheritance tax reform(federal popular initiative "Tax millions of inheritances for our AHV"); existence of tax avoidance; In the opinion of the Federal Supreme Court, although it is quite common for parents to make advance inheritance payments to their children as gifts and the taking out of a loan granted by the children does not appear unusual in itself, the simultaneous execution of the two legal transactions must be described as unusual (E. 3.3.1). 3.3.1); the appeal is dismissed.
- Judgment of 7 April 2017 (2C_302/2017): Cantonal and municipal taxes 2012 (Berne); re-establishment of the time limit for appeal; appeal and application for re-establishment of the time limit concerning an unchallenged assessment ruling which has become final; the appeal is not upheld.
Decisions are listed chronologically by publication date.
