Decisions of the Swiss Federal Court (calendar week 39)

Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 25 September - 1 October 2017.

Judgment of 7 September 2017 (2C_385/2017, 2C_386/2017): Direct Federal Tax and State and Municipal Taxes 2013 (Thurgau); no violation of the right to be heard in that the lower court did not accept the evidence offered by the appellant (admissible "false" anticipated assessment of evidence due to the lack of suitability of the requested evidence); the appellant did not state any facts that would support the maintenance of a third-party settlement and did not explain to what extent it is said to have received benefits that exceed the share recognised by the cantonal tax administration in terms of value; it would have been incumbent on the complainant to refute the estimates of the tax authorities, since the expenditure claimed was a tax-reducing fact; posted fictitious assets appear in the accounts in all cases and the non-posting of the non-values would have been in conformity with commercial law and thus undoubtedly appropriate however, since the complainant in the present case capitalised and depreciated the non-values, the tax administration had no choice but to add the depreciated amount to the profit in order to achieve for tax purposes the same result as if the non-values had never been entered in the accounts; rejection of the complaints.

Judgment of 8 September 2017 (2C_417/2017): Visitor's tax and tourism promotion tax of the Canton of Valais; the only controversial issue before the Federal Supreme Court was whether all of the visitor's tax and tourism promotion tax invoiced in 2013 and 2014 as well as the tourism promotion tax 2014 were still outstanding or whether they had been (partially) paid by the complainant; a "gross violation of the assessment of evidence pursuant to Art. 8 ZGB" by the previous instance is not apparent, since the account statements show that the payments claimed by the complainant were recorded as incoming payments (E. 3.2.2 in conjunction with E. 3.2.3); the existing debt was offset (E. 3.2.4); complaint dismissed to the extent that it was made.

Judgment of 25 August 2017 (2C_148/2016, 2C_149/2016): Direct federal tax and state and municipal taxes 2002 - 2008 (Geneva). The taxpayer claims in his assessment that he was the owner of shares but held them fiduciary. As a result, he would have to pay tax neither on the shares nor on the corresponding dividends. If there is a fiduciary relationship, this has the effect of reducing tax in the present case and must therefore be proven by the taxpayer. This requires, among other things, a valid written contract (see the information sheet of the EStV concerning fiduciary relationships for further requirements). If there is no written contract, the fiduciary relationship must be proven by other implied evidence. In the case of international relations - in the present case, the taxpayer claims that a foreign domiciliary company is the beneficial owner of the shares - strict proof requirements must be met. If the taxpayer does not have a written contract, it is mandatory to state who the beneficial owner of the assets or the fiduciary is.

Judgment of 8 September 2017 (1C_304/2017): Disclosure of tax identity card (Zurich); the complainant did not explain in detail why the previous instance should have established the facts of the case insufficiently or incorrectly; no violation of the principle of proportionality, the prohibition of arbitrariness and of principles of the Constitution of the Canton of Zurich (KV/ZH) the principle of publicity is enshrined in the KV/ZH and specified at the legal level in the IDG/ZH; in contrast to the constitution of the Canton of Basel-Stadt, the KV/ZH does not guarantee the confidentiality of tax data, but it is up to the authorities applying the law to weigh up the goods on the basis of the KV/ZH and the IDG/ZH; in the present case, no private interests prevent the disclosure of information (blanket justifications of the complainant); the information requested by the respondent is in principle subject to tax secrecy, but this is not absolute, but can be breached if there is a legal basis for this in federal or cantonal law the StG/ZH provides for such a basis - namely the issuing of tax identity cards; the requirements pursuant to § 122 StG/ZH are met in casu, since the respondent and the complainant are in an economic relationship and the data block prevents the respondent from pursuing its rights; dismissal of the complaint, if it was filed