Decisions of the Swiss Federal Supreme Court (calendar week 9)

Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 27 February to 5 March 2017.

Judgement of 21 December 2016 (2C_523/2015): Accommodation fees (Uri); qualification of the accommodation fee as a cost assessment tax (E. 3.1); a flat-rate assessment of the accommodation fee independent of the effective use of the tourist facilities does not violate the principle of legal equality (E. 6.2).

Judgement of 31 January 2017 (2C_55/2017; 2C_56/2017): Direct federal tax and state and municipal taxes 2013 (Thurgau); fictional delivery; start of the deadline if a registered mail item (assessment ruling) has not been collected (E. 3.1 et seq.); manifestly unfounded; settlement in a simplified procedure (E. 1.3).

Judgment of 13 February 2017 (2C_227/2016): mooring tax for boat and ship owners (Vaud); objection to the mooring tax (taxe d'amarrage) and further conditions in 2011; objection authority (Lausanne municipality) only issues objection decision in 2015. Formal denial of justice (E. 3.2) as well as violation of proportionality i.c. by provisions in the Lausanne regulations on ports and boat rental and their circulars denied (E. 4.2 and 4.3).

Judgement of 2 February 2017 (2C_1187/2016; 2C_1188/2016): Direct federal tax and state and municipal taxes 2010 (Bern); Definition of disability related costs; Differentiation of cost of living and luxury expenses (E. 3.1); manifestly unfounded; Settlement by simplified procedure (E. 1.3).

Judgment of 10 February 2017 (2C_128/2017; 2C_129/2017): Cantonal and municipal taxes for 2010 and 2011 (Aargau); granting of free administration of justice; manifestly unfounded; simplified procedure (E. 4).

Judgment of 10 February 2017 (2C_628/2016; 2C_629/2016); official publication planned: Direct Federal Tax and Cantonal Tax 2012 (Geneva). The severance payment received upon termination of the employment relationship due to an agreed non-competition clause was received by the managing director (complainant), who worked for a French company and resided in Switzerland, so that he would not engage in competing activities (E. 6.6.). The severance payment and its purpose of not exercising a competing activity falls under "other income" pursuant to Art. 23 of the Convention between Switzerland and France for the Avoidance of Double Taxation with respect to Taxes on Income and on Capital and for the Prevention of Fiscal Fraud and Tax Evasion of 26 July 1967 (SR 0.672.934.91) or Art. 21 of the 2010 OECD Model Tax Convention (E. 7.3.). The appeal, according to which CHF 87,500.00 of CHF 134,250.00 should be excluded from Swiss taxation as income, was dismissed.

Judgment of 15 February 2017 (2C_110/2017): Regulation on parking fees (Lucerne; Residential municipality of Ruswil); withdrawal of an appeal or an appeal; review of remission.

Judgment of 16 February 2017 (2C_481/2016; 2C_482/2016): Direct Federal Tax and State and Municipal Taxes 2005-2007 (Vaud). A joint stock company (complainant) focused on the brokerage, sale and management of real estate granted a loan (CHF 1,000,000.00) to its sole shareholder. The cantonal tax administration qualified this business transaction as a simulated shareholder loan and consequently treated it for tax purposes as a hidden profit distribution at the time of reclassification. The appeal against this decision was dismissed by the Cantonal Court of Vaud. The Federal Supreme Court confirmed the cantonal decision (lack of repayment ability of the sole shareholder as a characteristic of a loan simulation; E. 7.2 and 7.3).