Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 22 - 28 May 2017.
- Judgment of 2 May 2017 (2C_1104/2015): VAT on membership fees; subject of dispute is the VAT qualification of the fees which the respondent receives from its six members each year (question of the exchange of services); the purpose of the association is sustainable spatial development (settlement, transport and open space) in the trinational conurbation of Basel; the benefits of joint planning are difficult to quantify, which means that the members lack the possibility of determining the membership fees a priori on the basis of the concrete benefits for the respective subspace (E. 3.3.3). In the absence of an exchange of services, there is a genuine member contribution that is not subject to VAT (non-turnover), which is why the question of whether the service in question is an exempt service (Art. 21 para. 2 no. 13 VAT Act) cannot be raised, contrary to the assessment of the previous instance (cf. E. 3.4).
- Judgment of 26 April 2017 (2C_298/2015, 2C_299/2015): Direct federal tax and cantonal and communal taxes 2006 (Nidwalden, Basel-Landschaft and Basel-Stadt); fictitious delivery cannot be used because more than 23 months have passed since the last procedural act relating to the case or more than 39 months since the objection was raised; in the event of a conflict of jurisdiction, the procedure for direct federal tax would be that set out in Art. 108 DBG would have been applicable for direct federal tax in the event of a conflict of jurisdiction, whereby in the present case such a procedure was waived for reasons of procedural economy; insurance benefits from a private liability insurance are taxable at the time of the agreement, settlement or notification of the insurance company or, subsidiarily, at the time of payment; dismissal of the appeal.
- Judgment of 25 April 2017 (2C_41/2016, 2C_42/2016): Direct Federal Tax and Cantonal and Municipal Taxes 2011 (Glarus); no violation of good faith (Art. 9 BV) in the attribution of loss certificates to business or private assets, as in the present case there was no accepted qualification of the asset over a longer period of time; the claims belong to the business assets of the partnership, as they were assigned by the appellant and recorded in the business assets; recoverability of the assigned claims is not subject of the current assessment; approval of the appeal.
- Judgment of 1 May 2017 (2C_506/2016): Cantonal and communal taxes 2009 (Aargau); Determination of the income from independent gainful activity of the husband (agricultural business), which was increased in connection with the release of an accounting provision; offsetting of a replacement provision, which was formed in connection with the sale of a property; set-off of the asset value in relation to a vehicle belonging to the wife (the complainant's view that the vehicle in question is part of the business assets because his wife works on the business does not justify why the vehicle not owned by the business owner under civil law should nevertheless exceptionally form part of the business assets of the business owner); the complaint is dismissed.
- Judgment of 10 May 2017 (2C_829/2016, 2C_830/2016): Direct federal tax and cantonal and communal taxes 2008 - 2009 (Geneva); tax treatment of a couple resident in the canton of Geneva with regard to their property in Portugal; determination of the imputed rental value of foreign real estate for the purpose of determining the taxable base in Switzerland (Art. 21. para. 2 DBG); admissibility of a flat-rate calculation method (no violation of Art. 21 para. 2 DBG); no violation of the right to be heard; no arbitrary assessment of evidence in determining the imputed rental value; the appeal is dismissed.
- Judgment of 16 May 2017 (2C_446/2017): Direct Federal Tax and Cantonal and Municipal Taxes 2013 (Geneva); no legal justification; the appeal is dismissed on the grounds of obvious inadmissibility.
Decisions are listed chronologically by publication date.
