Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 16 - 22 April 2018.

  • Judgment of 26 March 2018 (2C_61/2018): Direct federal tax and cantonal tax 2009 - 2010 (Ticino); the taxpayers filing the complaint were unable to sufficiently substantiate the extent to which the lower instance wrongly assumed that the appeal was futile and therefore denied taxpayers the right to free administration of justice; dismissal of the taxpayers' complaint
  • Judgment of 29 March 2018 (2C_598/2017): Administrative assistance (DTA Switzerland - USA); the data enabling the identification of the employees of a Swiss bank do not constitute necessary information within the meaning of Art. 26 para. 1 DTA Switzerland - USA; the data are not suitable for determining the financial and tax situation of the taxpayer affected by the request for administrative assistance; nor can their transmission be justified solely by the fact that the bank's employees may have been involved in the fraud or similar offence of the taxpayer to which the request relates, as administrative assistance cannot be used for the purposes of legal assistance.
  • Judgment of 23 March 2018 (2C_707/2016): Staats- und Gemeindesteuern 2009 (Zurich); the controversial question was whether the two German limited partnerships C. and D. are foreign business operations or permanent establishments; under double taxation law, the mere activity in the permanent establishment facilities is sufficient to qualify as a permanent establishment and an actual business activity is not required, but as a minimum requirement for the acceptance of a permanent establishment, an entrepreneurial or business activity (at least carried out elsewhere) must be demonstrated. the activity of the two companies qualifies in the present case as private asset management, which is why, under internal Swiss law, they are non-commercial partnerships and the activity carried on in Germany does not have the quality of a business operation from the outset; in the absence of an entrepreneurial or profit-making activity, there is therefore no tax-relevant permanent establishment; dismissal of the complainant's complaint.
  • Judgment of 27 March 2018 (2C_888/2017): Determination of the tax residence for state and municipal taxes in 2014 (Bern); the lower court correctly stated that the centre of the complainant's life interests was in Bern during 2014; this corresponds to the generally usual situation of a 30-year-old and unmarried person who has already worked for several years with a (so to speak) full workload at the same place; in such a case, it is assumed in practice that the tax residence is in the municipality of the weekly stay and no longer in the place of residence of the parents, if any, visited at the weekend or in any other place, unless special individual circumstances are convincingly invoked in the specific case; rejection of the complainant's complaint.
  • Judgment of 28 March 2018 (2C_940/2017): State and municipal taxes 2009 (Aargau); at the time of sale, the plots of land belonged to the building zone, were undeveloped and were not designed in such a way that they could be considered a reasonable turnaround; the plots of land therefore did not enjoy any protection under land law, which means that under tax law, the property gains tax must be deducted from the income tax (with reference to BGE 138 II 32); dismissal of the complainants' appeal
  • Judgment of 4 April 2018 (2C_730/2017): The complainant's appeal against the decision of the FTA regarding the input tax deduction in relation to the purchase of a work of art was upheld by the Federal Administrative Court (FAC) and compensation of approximately CHF 1,000 was awarded for the costs of his legal representative; the Federal Supreme Court held that the FAC had set an amount that was too low and did not reflect the work actually performed and (on this point) remitted the decision to the lower court.
  • Judgment of 26 March 2018 (2C_315/2017): State and municipal taxes 2003 (Aargau); the limitation period for the assessment of cantonal and municipal taxes 2003 was interrupted by letter of December 2008 and by the first assessment of May 2013; the property, the taxation of which from self-employment as realised liquidation profit is disputed in the present case, falls in principle under the material scope of application of the BGBB, whereby a separation from an agricultural trade would have required a permit; since the complainants have not obtained authorisation, they behave contrary to their previous conduct and in an abusive manner with regard to the claim for preferential taxation as agricultural land; since in the present case the element of building land predominates over the agricultural element in the sale, the land does not fall within the scope of application of the BGBB; dismissal of the complaint in so far as it was upheld
  • Judgment of 26 March 2018 (2C_463/2016): Direct Federal Tax 2003 (Aargau); private withdrawal; the statute of limitations for the assessment of direct Federal Tax 2003 was interrupted by letter dated October 2008; the property, the taxation of which from self-employment as realised liquidation profit is disputed in the present case, falls in principle within the material scope of application of the BGBB, whereby a separation from an agricultural trade would have required a permit; since the complainants have not obtained authorisation, they are behaving contrary to their previous conduct and in an abusive manner with regard to the assertion of preferential taxation as agricultural land; since in the present case the element of building land predominates over the agricultural element in the sale, the land does not fall within the scope of application of the BGBB; dismissal of the complaint.
  • Judgment of 27 March 2018 (2C_597/2017): Direct Federal Tax and State and Municipal Taxes 2005 (Zurich); the lower court's assessment of the evidence that there was no repayable loan from the parents to the son is protected by the Federal Supreme Court on the other hand, there is an infringement of the right to be heard, since the lower court did not question the father and did not question the parties, although the appellant's assertion that it was a gift does not appear to be inappropriate from the outset; acceptance of the appeal and rejection of the case for a new decision to the lower court

Non-occurrence decisions / inadmissible complaints:

Decisions are listed chronologically by publication date.

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