Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 5 - 11 March 2018.

  • Judgment of 14 February 2018 (2C_600/2017): Procedural law; free administration of justice in appeal proceedings concerning state and municipal taxes and direct federal taxes 2014 (St. Gallen); the taxpayer's appeal is dismissed to the extent that it is admissible.
  • Judgment of 21 February 2018 (2C_133/2018): State and municipal taxes 2013 (Aargau); determination of tax liability on an intercantonal basis. A property for which a down payment was made and which was transferred by way of a disposal transaction in 2013 already leads to economic ownership in 2013, even if construction was still in progress and ownership did not commence until 2014; rejection of the taxpayers' complaint.
  • Judgment of 21 February 2018 (2C_65/2018): withholding tax; the taxpayers' appeal to the lower court was late, which is why the lower court was right not to take action on it; the taxpayers' appeal is dismissed.
  • Judgment of 14 February 2018 (2C_114/2017): Decree of 12 December 2016 concerning the amendment of the Tax Act of 22 November 1999 (Lucerne); abstract review of norms; the subject of the complaint in public law matters was the new Section 95 paragraphs 3 and 4 StG/LU ("minimum tax", correctly minimum tax, of CHF 500 for corporations and CHF 200 for cooperatives). The complaint, according to which the minimum tax is inadmissible as such under Article 27(2) StHG, proved to be unfounded, particularly since it replaces ordinary taxes if the amount of the latter is less than the minimum tax and, consequently, double taxation is avoided. Furthermore, the differentiation of the minimum tax amounts between corporations on the one hand and cooperatives on the other hand does not infringe Article 27(1) StHG. The requirement of equality of rights according to Art. 8 para. 1 BV and the principle of uniformity of taxation according to Art. 127 para. 2 BV are complied with, since there are objective reasons for the moderate unequal treatment - in particular the different orientation of corporations and cooperatives as well as the fact that cooperatives regularly have less economic resources. With a fixed amount of CHF 500 for corporations and CHF 200 for cooperatives, the principle of taxation according to economic capacity according to Art. 127 para. 2 BV and the principle of proportionality according to Art. 5 para. 2 BV and § 2 para. 2 KV/LU are respected. Furthermore, there is also no violation of the prohibition of arbitrariness and the principle of good faith. Finally, the complainants' complaint that there has been a violation of the prohibition of intercantonal double taxation under Article 127(3) of the Federal Constitution is also flawed, especially since the provisions of § 95(3) and (4) of the StG/LU only apply in the case of personal affiliation and thus only cover persons with unlimited tax liability. Dismissal of the appeal.
  • Judgment of 16 February 2018 (2C_798/2017): Land owner contributions (Valais); the land owner contributions are usually determined according to the possibilities of use under building law and taking into account the local conditions; the competent authority has a margin of assessment which it must exercise in accordance with the constitution; due to the additional development of a plot of land from the north, there is a special economic advantage or the necessary individual equivalence (at least the resulting special advantage is not merely theoretical/abstract in nature, but quite real and practical); the collection of the landowner's contributions was justified; the landowner's complaint was rejected.
  • Judgment of 19 February 2018 (2C_419/2017): Real estate gains tax 2011 (Bern); tax penalty; in connection with a sale of real estate (property with a restaurant on the ground floor and rental apartments above), the seller agreed during the sales process with a third party that the third party should continue to manage the restaurant for a minimum period of nine months after the sale of the property via a newly to be established operating company and that for this purpose, after the successful sale of the property, the third party should receive, inter alia, CHF 130,000 for the continued payment of the rent for the minimum period. After the sale of the property, the seller declared a payment of CHF 93,500 in the aforementioned context as a brokerage commission and submitted a receipt for this. In 2014, the Cantonal Tax Administration opened, inter alia, tax evasion proceedings, which are the subject matter of the present appeal. In order for an expense to be considered inseparably linked to the acquisition or sale, it must have a direct factual connection with the change of ownership. In the present case, the Federal Supreme Court denied the direct factual connection of the payment with the change of ownership. Rather, the existing tenancy was intended to make the object of purchase appear to the prospective buyer as a worthwhile investment object. The expenditure was not related to the property sold. The Federal Supreme Court ultimately supported the considerations of the lower court with regard to the existence of both the objective and subjective elements of the offence - in particular after the complainant stated, in response to a telephone enquiry by the tax administration, that this was a brokerage commission. Dismissal of the appeal of the complainant affected by the tax fine, insofar as it is to be upheld.

Non-occurrence decisions / inadmissible complaints:

Decisions are listed chronologically by publication date.

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