Decisions of the Swiss Federal Supreme Court (CW 10 - 2022)

Overview of the tax law decisions of the Swiss Federal Supreme Court published between 7 - 13 March 2022:

Judgment of 28 December 2021 (2C_918/2020): Administrative assistance DTA CH-IN; The FTA raises the question of whether and to what extent the transmission of bank information in connection with a data subject is permissible if a company is the holder of the account relationship for a trust and the person subject to administrative assistance is the beneficiary of the trust. The lower court considered that in such a constellation it depends on whether there is a "revocable trust" or an "irrevocable trust". In the case of an irrevocable trust, a further distinction had to be made between an irrevocable fixed interest trust and an irrevocable discretionary trust. In the case of an irrevocable discretionary trust, the beneficiaries cannot assert a fixed claim from the trustee for payment or capital shares of the trust. The Federal Supreme Court held that Indian law, and not Swiss law, should be applied for tax purposes. It is not for the FTA to deal with the case law of the Indian Supreme Court. The legal situation in India can only be examined in the Indian proceedings. The FTA's appeal is upheld. See also our article of 13 February 2022 on BGer 2C_936/2020 which dealt with the same question.
Judgement of 15 February 2022 (2C_26/2022): Direct federal tax and state and communal taxes 2019 (Solothurn); The taxpayer complained that the tax office had wrongly increased the imputed rental value. He relied on the oral testimony of two persons who had previously worked for the tax office and also complained that the storage room was not habitable and lacked electricity and water supply. In the present case, there was already a lack of protection of legitimate expectations due to the fact that the disposition could not be reversed without disadvantage. The other objections concern the facts of the case, which are only examined for arbitrariness. Dismissal of the taxpayer's appeal.
Judgement of 15 February 2022 (2C_75/2022): Direct Federal Tax and State and Municipal Taxes 2018 (Bern); The dispute is whether the lower court was entitled to assume, on appropriate grounds, that the reasons for restoring the missed objection deadline were lacking. Pursuant to Art. 133 para. 3 DBG and Art. 161 para. 3 StG/BE, a late legal submission may only be accepted if the taxpayer proves that he or his representative was prevented from submitting the submission on time through no fault of his own. The lower court explained that the document prepared by the Inselspital merely contained a general recommendation that the trustee belonging to a risk group should work at home if corona cases had arisen in his environment. In particular, it does not appear that and to what extent the mandate-holding trustee fell ill and was prevented from acting in a timely manner. Dismissal of the appeal by taxpayer A. AG.

Non-admission/revision requests: