Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 9 - 15 April 2018.

  • Judgment of 12 March 2018 (2C_181/2018): Direct Federal Tax 2011 (Zug); the disputed issue was the presumed market value of the property in dispute at the time of the sale from the taxpayer's business assets to, among others, the joint stock company held by him and his wife, which in turn sold the property to a third party shortly afterwards. Since no expert opinion was available on the market value at the time of the sale to the AG of the taxpayer, external circumstances had to be taken into account, i.e. a comprehensive assessment of evidence had to be made. After the FTA had asserted a tax-increasing fact in the present case, the onus of proof and proof was on it - and not, as claimed by the FTA, on the taxpayer. In addition, the Federal Supreme Court also considered the assessment of evidence in the lower court to be constitutionally tenable in view of the fact that both the cost price and the final sale price could be regarded as secured to the extent that legal transactions with third parties had been involved. Dismissal of the FTA's appeal.
  • Judgment of 15 March 2018 (2C_879/2017): Real estate transfer tax (Berne); in the Canton of Berne, the real estate transfer tax is assessed on the basis of the consideration for the acquisition of the real estate; according to the express provision of Art. 6a HG/BE, the purchase price of the land and the remuneration for work are to be added together; although the final contract for work was only concluded after the purchase of the land, extensive preparatory work and finished project plans had already been drawn up before that time (on the basis of a project planning order), which enabled the complainant to sign the building application and submit the necessary plans only two days after the signing of the contract for the purchase of the land; it must therefore be assumed that the complainant had already definitively decided to realise the planned building when the land purchase agreement was signed, so that at that time he was in fact no longer free to decide when and how to build on his land; rejection of the complainant's complaint
  • Judgment of 23 March 2018 (2C_821/2017): Cantonal and communal tax 2010 (Geneva). The Geneva Court of Justice did not hear the appeal because the complainant only requested that the tax value of his property be reduced to CHF 4,788,542. However, the complainant did not request the annulment of the judgment of the lower court and a new taxation in accordance with his requests. Approval of the appeal due to excessive formalism of the Cour de justice.
  • Judgment of 23 March 2018 (2C_823/2017): Cantonal and communal tax 2010 (Geneva). The Geneva Court of Justice did not hear the appeal because the complainant only requested that the tax value of his property be reduced to CHF 4,788,542. However, the complainant did not request the annulment of the judgment of the lower court and a new taxation in accordance with his requests. Approval of the appeal due to excessive formalism of the Cour de justice.
  • Judgment of 23 March 2018 (2C_644/2017): Direct Federal Tax and State and Municipal Taxes 2010 (Zurich). The increase in a shareholder loan from the taxpayer to the Australian company in which it holds a stake was rightly set off against income to an extent that was dutifully determined. This is because the taxpayers did not succeed in any way to invalidate all the existing indications of an income-effective increase in assets by means of counter-evidence and to make the official income offset appear illegal, and they consequently failed to prove the incorrectness in every phase of the proceedings. Dismissal of complaints from taxpayers.
  • Judgment of 23 March 2018 (2C_52/2018): Direct Federal Tax and State and Municipal Taxes 2010 - 2011 (Berne); the regular restaurant visits of the shareholders of the taxable company have rightly been fully offset due to the lack of evidence of business justification and due to the circumstances, some of which were blatantly abusive. A possible "ruling" (if it was issued with binding effect at all, which the previous instance denied) cannot change this, because it concerns the division between private and business shares in restaurant editions. This requires, however, first of all that the expenditure was justified at all on business grounds, which was not the case here; rejection of the taxpayers' complaint.

Decisions are listed chronologically by publication date.

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