Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 12 - 18 March 2018.
- Judgment of 21 February 2018 (2C_429/2017): Direct Federal Tax and State Tax 2011 (Fribourg); deductibility of maintenance payments; in 2003, the competent authority approved a maintenance agreement under which the complainant undertook to pay a monthly maintenance contribution of CHF 15,000 for his son, born in September 1993, until he reached the age of 18 or until he properly completed his education; due to various disputes, the corresponding amounts were only paid at the beginning of 2011 (when the child was already of age). Due to various disputes, the corresponding amounts were only paid at the beginning of 2011 (when the child was already of age) (father and son agreed on CHF 800,000 as part of a settlement); the tax authority denied the deductibility of the payment; the deductibility of maintenance contributions for a child requires, pursuant to Art. 33 para. 1 lit. c (first sentence) DBG, parental care of the parent receiving the benefits is a prerequisite; children are under parental care until they have reached the age of 18; from the time they reach the age of majority, the debtor can therefore no longer deduct the maintenance contributions paid for tax purposes(Art. 24 lit. e and 23 lit. f DBG) (E. 3.3.2); it is irrelevant in this regard that the payments are subsequent payments of periodic maintenance contributions (E. 3.3). Dismissal of the complainant's appeal.
- Judgment of 13 February 2018 (2C_117/2017): Tax reference; heirs' liability (Zurich); in the present case, it was disputed whether the two complainants were liable for any tax debts of their mother despite the rejection of the inheritance, as they had taken over her mother's properties approximately two and a half years before her death; anyone who receives an advance withdrawal of the inheritance in good faith and later makes use of the right of disclaimer does not act in breach of the law; the evidence according to which the applicants are supposed to have known at the time of the transfer of the property that the estate would one day be over-indebted has not been provided; approval of the appeal.
- Judgment of 26 February 2018 (2C_172/2018): Direct Federal Tax and State and Municipal Taxes 2013 (Zug); in dispute and to be examined was the deductibility of the remuneration of EUR 1,461,701 paid by the taxpayer in 2013 for services received in the years 2008 to 2010; according to the findings of the lower court, which are binding for the Federal Supreme Court, there were no accruals affecting profit in the years 2008 to 2010 and also no booking of the payment (offsetting) in 2013; since profit tax law is fundamentally linked to commercial law(Art. 58 para. 1 lit. a DBG), it cannot be seriously questioned whether the services received in the years 2008 to 2010 but not yet invoiced should have led to an accrual in those years; the subsequent consideration in the 2013 tax period is not only aperiodic, it may also have the consequence, for example, of unjustifiably interfering with the course of the loss offset; However, a consideration of the disputed amount of EUR 1,461,701 in the 2013 tax period must fail in any case due to the fact that the booking itself was still omitted in the 2013 financial year; the final settlement of the outstanding amounts agreed in 2013 also does not constitute a novation i.S.v. Art. 116 OR; dismissal of the taxpayer's appeal.
- Judgment of 28 February 2018 (2C_931/2017): Real property gains tax (Zurich); the previous instance had rightly considered, on the basis of Article 12 para. 3 letter e StHG and para. 216 para. 3 letter i StG/ZH, that in the present case there was no purchase of an equally used or owner-occupied property, since the part of the replacement property used privately by the complainant himself was limited to hardly more than 200 m², compared to a total area of almost 2,900 m²; the purchase price corresponding to the part of the property actually used by himself was therefore far from CHF 12.75 million (= selling price of the previous property), as would be necessary according to the authoritative, so-called absolute method, for a replacement acquisition justifying the tax deferral to be accepted; dismissal of the taxpayer's complaint
- Ruling of 5 March 2018 (2C_117/2018): Withholding tax (due 2014); the taxpayers enclosed a tax list from their bank with the tax return, which only covered the period from 1 August to 31 December 2014; they only submitted a tax list covering the period from 1 January to 31 July 2014 at the request of the tax authority, which revealed that investment income of around CHF 100,000 had not been declared; confirmation of the case law according to which an individual's claim to a refund of withholding tax on investment income and lottery winnings is forfeited(Art. 23 VStG) if the taxpayer does not make either a spontaneous initial declaration (as part of the tax return) or at least a spontaneous subsequent declaration that is made in sufficient time for the undeclared income subject to withholding tax to actually still be taken into account in the assessment ruling (E. 2.2); if the tax authority has to make enquiries, the claim to a refund is forfeited (E.2.4.2); dismissal of the complainants' appeal.
Decisions are listed chronologically by publication date.
