Overview of the tax rulings of the Swiss Federal Supreme Court published in the week of November 20 - 26, 2017.
- Judgment of 1 September 2017 (2C_643/2016), official publication scheduled: Administrative assistance DTA Switzerland-Norway. In 2014, the Norwegian tax authority sent a request for assistance to the FTA, which contained the numbers of nine payment cards, but the holders were unknown. The requested information relates to the period from 1 January 2011 to 28 February 2014. Art. 26 DBA Switzerland Norway is thus applicable in its 2009 version, which concerns tax periods from 1 January 2011 (there is currently a new version of Art. 26, which concerns tax periods from 1 January 2017 and is therefore not applicable to the present case). The 2009 and 2012 exchanges of letters should be taken into account: the first exchange of letters in 2009 still required that taxpayers concerned by a request for mutual assistance be identified by name and address, while the second exchange of letters in 2012 provided that identification could take place by another means. Art. 26 DTA Switzerland Norway in the 2009 version is thus applicable to the present request for administrative assistance, with the second exchange of letters of 2012 being authoritative. The BGer states that there is no inadmissible fishing expedition (as defined by BGE 143 II 136).
- Judgment of 31 October 2017 (2C_456/2017): State and municipal taxes 2013 (Aargau), deduction of maintenance costs for real estate held as private property; the tax year in which the maintenance costs are to be taken into account was disputed; the fact that the cost credit of the building insurance (for the replacement of windows in 2011) was only granted in 2013 does not alter the fact that the maintenance costs for the window replacement were already invoiced and paid by the complainants in 2011 and were therefore tax deductible; the expenses for the window replacement were to be allocated to the tax year 2011; the decision of the lower instance proves to be in conformity with federal law; the appeal is dismissed
- Judgment of 2 November 2017 (2C_651/2017, 2C_652/2017): Direct federal tax and state and municipal taxes 2007-2011 (Thurgovia); supplementary taxes; non-taxed pensions and insurance values (the pension of Deutsche Rentenversicherung is taxable as income in Switzerland; the surrender values of Aachener und Münchener Lebensversicherung are taxable as assets); the only controversial issue was whether the facts and evidence submitted by the tax administration were taxable in the sense of Art. 151 para. 1 DBG were "new" or "not known to the tax authorities"; the account statements submitted with the tax return cannot be regarded as proof of pension income and it is not apparent from them that regular payments were made; the complaint is dismissed.
- Judgment of 2 November 2017 (2C_886/2017): Direct federal tax and state and municipal taxes 2012 (Thurgau); application for re-establishment of the deadline; the application would have had to be submitted to the Administrative Court of the Canton of Thurgau; the Federal Court has no jurisdiction; forwarding of the application to the Administrative Court of the Canton of Thurgau which has jurisdiction in the matter
- Judgment of 26 October 2017 (2C_674/2015, 2C_675/2015): Direct Federal Tax and State and Municipal Taxes 2005 (Geneva); tax evasion; no arbitrary assessment of evidence; existence of a payment in kind; the purchase price agreed between the sister companies held by a sole shareholder did not correspond to the market value and was to be corrected accordingly using the triangular theory; in the present case tax evasion; the appeal is dismissed.
- Judgment of 2 November 2017 (2C_1157/2016, 2C_1158/2016): Direct federal tax and state and municipal taxes 1997-2005 (Solothurn); supplementary taxes and evasion; payment in kind "If a participant [...] receives services from the company, the question arises whether these services are matched by an appropriate consideration. Proof of consideration is generally deemed to have been provided when the services of the party concerned to the company are recorded (relevance of the commercial balance sheet). If this is generally the case, the tax administration bears the burden of proof that the consideration does not exist or is not appropriate (i.e. does not stand up to a comparison with third parties). If the administration has demonstrated such a mismatch between performance and consideration, it is up to the person concerned to rebut the (natural) presumption thus established; if this proof fails, the taxpayer bears the consequences of the lack of proof". (E. 4.2.3.) The distribution of the burden of proof, which is decisive for ordinary proceedings, also applies to criminal tax proceedings and does not contradict the presumption of innocence. As a result, the Federal Supreme Court examined various benefits for the existence of a corresponding consideration and concluded, with regard to an amount already classified as rental income, that its repeated classification as a payment in kind constitutes an inadmissible double entry; reduction of the amount of after-tax; on this point, the contested decision violates federal law and the appeal is partially upheld; on all other points, the appeal is dismissed
Decisions are listed chronologically by publication date.
