Overview of the tax rulings of the Swiss Federal Supreme Court published between January 1 - 19, 2025:
- Judgment of December 5, 2024 (9C_42/2024) - for publication: Staats- und Gemeindesteuern 2012 und 2015 (Zurich) und Direkte Bundessteuer; The dispute was whether the application of the simplified additional taxation of heirs under Art. 153a DBG requires active notification (or reporting) by the taxable person (in this case the heiress) or whether the simplified additional taxation also applies if the tax authority becomes aware of the under-taxation on its own initiative. The wording of the provision does not indicate an active notification obligation (or reporting obligation) on the part of the taxable person, nor the relevant point in time for the "knowledge of the evasion by the tax authority". From a systematic point of view, the simplified subsequent taxation of heirs is a lex specialis to ordinary subsequent taxation. Historically, it can be seen that the standard for simplified subsequent taxation of heirs was introduced at the same time, i.e. together with the draft law on voluntary self-disclosure without penalty. However, due to the joint introduction and similarity of the two provisions, it remains unclear whether the legislator also intended to provide for a duty of disclosure in the case of subsequent taxation of heirs. The purpose of the standard is primarily to ensure the enforcement of proper taxation. Opinions on the relevant question are then divided. Some scholars are of the opinion that heirs can also claim the simplified subsequent taxation if the tax administration discovers the under-taxation. The opposite view is that the initiation of proceedings under Art. 153a DBG ex officio by the tax authorities is excluded after they have discovered tax evasion by the deceased on the basis of their own investigations. However, from lit. a of the provision, according to which one of the prerequisites for simplified subsequent taxation in inheritance cases is ignorance of the "tax evasion" on the part of the tax authorities, the requirement of an application or a reporting obligation on the part of the heirs can be derived. This second doctrine is to be followed. Dismissal of the taxable heir's appeal.
- Judgment of December 9, 2024 (9C_320/2024): State and communal taxes (Geneva) 2012-2013 and direct federal tax 2003-2010; liability order; The ex-spouses who lodged the complaint were subject to back taxes for the tax periods in dispute. After the separation, the ex-spouses requested the issuance of a liability ruling. In the end, both appealed to the Federal Supreme Court, which dismissed the formal objections raised, especially as the complainants' objections were essentially aimed at the substantive review of the back-tax bases, which cannot be the subject of the review of a liability ruling. Dismissal of the complaint of the liable party.
- Judgment of December 19, 2024 (9C_361/2024) - intended for publication: VAT 2014-2018; The FTA carried out two checks on the taxpayer and issued an assessment notice (EM) for the 2013 tax period (EM 1) and the 2014-2018 tax periods (EM 2). The FTA incorrectly made an input tax adjustment in EM 1 instead of EM 2. In May 2022, the taxpayer expressly and unconditionally recognized EM 2, which became legally binding. In November 2022, the FTA issued two separate rulings, one for the 2013 tax period (V 1) and one for the 2014-2018 tax periods (V 2). In doing so, it revoked the subsequent debit (input tax correction) in V 1 and transferred the disputed amount to V 2 by way of revocation. It was disputed and to be examined whether the revocation of EM 2, which had become legally binding, was lawful. According to the Federal Supreme Court, it is not permissible under VAT law - in the absence of a legal basis - to return to a legally binding EM, a legally binding ruling or a legally binding objection decision by way of reconsideration (in favor of the taxable person) or revocation (in favor of the FTA). This applies equally to the harmonized tax law of the Confederation, cantons and municipalities. In VAT law, a return to the aforementioned decisions and decision surrogates is only conceivable within the framework of the provisions of Art. 85 MWSTG or Art. 12 para. 1 VStrR. Dismissal of the FTA's appeal.
- Judgment of December 16, 2024 (9C_273/2024) (for publication): The additional taxes levied in this case are inheritance debts. The prevailing doctrine assumes that the executor of the will is exclusively entitled to conduct the proceedings, which means that the heirs are not authorized to take legal action on their part. This view is essentially justified by the fact that the deceased's tax debts, as debts of the estate, are not subject to disposal by the heirs if an executor has been appointed. This executor must act in place of the heirs and with effect for them in the assessment and appeal proceedings. If each heir were granted separate party status alongside the executor, this diversification of interests among the litigants could lead to a delay in the proceedings and therefore also in the division, which would be contrary to the purpose of the institution of the executor. According to the Federal Supreme Court, there are no clearly divergent approaches and, for these reasons, the Federal Supreme Court urges that the power to conduct the proceedings should also be granted exclusively to the executor in the present post-tax proceedings. However, the heirs must be granted those procedural rights that are essential to safeguard their interests as jointly and severally liable tax debtors; in particular, they must be granted access to the files; dismissal of the appeal of one heir.
Non-occurrence:
Decisions are listed chronologically by publication date.
