Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 13 to 19 February 2017.
- Judgment of 12 January 2017 (2C_479/2016, 2C_480/2016): Direct federal and cantonal taxes 2009 and 2010 (Basel-Stadt); deduction of disability related costs.
- Judgment of 26 January 2017 (2C_741/2016): Tribunal cantonal de l'Etat de Fribourg (Cour fiscale); denial of justice; application for judicial assistance.
- Judgment of 26 January 2017 (2C_742/2016): Tribunal cantonal de l'Etat de Fribourg (Cour fiscale); denial of justice; application for judicial assistance.
- Judgment of 26 January 2017 (2D_3/2017): State and municipal taxes 2015 (Aargau); tax remission.
- Judgment of 30 January 2017 (2C_177/2016, 2C_178/2016): Direct federal and cantonal taxes 2001, 2002 and 2003 (Geneva); hidden profit distribution; triangular theory.
- Judgment of 27 January 2017 (2D_37/2016, 2D_38/2016): Direct federal tax and state and municipal tax 2006 and 2007 (Berne), tax remission.
- Judgment of 31 January 2017 (2C_636/2016): Tribunal cantonal de l'Etat de Fribourg (Cour fiscale), request for legal assistance, denial of justice.
- Judgment of 25 January 2017 (2C_606/2016, 2C_607/2016); scheduled for official publication Direct federal tax; cantonal and municipal tax (Geneva); withholding tax refund application (DTA CH-IL).
- Judgment of 2 February 2017 (2C_64/2017, 2C_65/2017): Direct federal tax; cantonal and communal tax 2013 (Vaud); insufficiently substantiated appeal; simplified procedure for deciding not to intervene.
- Judgment of 12 September 2016 (2C_276/2016); official publication scheduled: Administrative assistance for group requests from the Netherlands (DBA CH-NL). The question was whether or not group requests in accordance with the OECD standard and the provisions of Swiss tax office assistance legislation (Tax Office Assistance Act and Tax Office Ordinance) fall within the scope of the DTA CH-NL. In particular, the question arose as to how the definition of "group requests" by the Institute was to be assessed in a legally correct manner. The lower instance (Federal Administrative Court ruling of 21 March 2016) had reached the conclusion that the protocol to the DTA CH-NL did not allow group requests. The Federal Administrative Court justified its view in particular by stating that although Art. 26 DBA CH-NL does not contain a detailed list of the information required in a request for administrative assistance, the relevant provisions of the Protocol to the DBA CH-NL, with their clear wording, require the name of the person(s) involved in a review or investigation as a substantive requirement for the request for administrative assistance. The wording of this provision leaves no room for interpretation. Since the name requirement excludes group requests without mentioning names, it is not possible from the outset to allow such requests by interpretation with the help of the update of the OECD Commentary of 17 July 2012. It can therefore be left open whether this update is a clarification or an amendment and whether it can be used as a subsidiary means of interpretation in the sense of a dynamic interpretation (E. 3.1.). The FTA submits to the Federal Supreme Court that a grammatical interpretation of the protocol to the DBA CH-NL allows group requests (without naming names) (E. 3.2.). The Federal Supreme Court states in this regard that it should first be noted in summary that the Tax Office Assistance Act regulates the procedure and execution of administrative assistance. However, its substantive definitions are only of interest insofar as they explain the provisions according to the applicable international agreements. The provisions of the Tax Office Assistance Act concerning group requests therefore only apply to the extent that the relevant agreement itself allows group requests. An independent legal basis for autonomous administrative assistance cannot be found in the Tax Office Assistance Act (E. 4.4.). In the opinion of the Federal Supreme Court, the legal basis for the provision of administrative assistance in the case of group requests must therefore result from the relevant DTA (E. 5.). In this regard, the Federal Supreme Court notes that the Understanding on the DTA CH-NL, which was concluded to rectify the protocol provision, states that the person involved can also be identified in a way other than by providing his name and address. This would clearly indicate that the Parties do not consider it necessary to explicitly mention names in the request for assistance. In other words, group requests without naming names should be admissible under the DBA CH-NL (E. 5.3.). In summary, the Federal Supreme Court states that, according to current understanding, the interpretation based on the OECD commentary leads to the conclusion that the DTA CH-NL in conjunction with the Understanding allows administrative assistance even without identification by name (E. 5.4.). The Federal Supreme Court considered the FTA's appeal to be well-founded, overturned the Federal Administrative Court's ruling of 21 March 2016 (see also the Federal Administrative Court's media release of 21 March 2016) and confirmed the FTA's final ruling of 25 November 2015; see also the Federal Supreme Court's media release of 12 September 2016.
- Judgment of 30 January 2017 (2C_36/2017, 2C_37/2017): Direct federal tax and state and municipal tax 2014 (Solothurn); objection to a dutiful discretionary assessment
- Judgment of 31 January 2017 (2C_93/2017, 2C_94/2017): Direct federal tax and state and municipal tax 2012 (Zurich); business justification of the expenses of a public limited company; periodicity principle.
- Judgment of 2 February 2017 (2C_690/2016): The judgment is currently not available. The information will be provided as soon as available.
Decisions are listed chronologically by publication date.
