Decisions of the Swiss Federal Supreme Court (CW 17 - 2024)

Overview of the tax rulings of the Swiss Federal Supreme Court published between April 22 - 28, 2024.

Judgments of March 12, 2024 (9C_89/2023 and 9C_90/2023): Cantonal and communal taxes and direct federal tax 2018 (Valais); in dispute is the qualification of a gain from the sale of a co-ownership share in a plot of land. In this case, the taxpayer contractually undertook to establish a simple partnership in order to realize a real estate development together with other co-owners. A self-employed activity is to be assumed if several persons join together in a building consortium for a specific real estate transaction and some of them participate as part of their profession and take care of the management for joint account in consultation with the others. It is sufficient that such an activity exists at the level of the whole. Dismissal of the taxpayers' appeal (direct federal tax) and remittal of the case (cantonal and communal taxes).
Judgment of March 14, 2024 (9C_5/2023): State and municipal taxes and direct federal tax 2017 (Valais), subsequent taxes (monetary benefit); If a monetary benefit is only established on the basis of an audit, a new fact exists. Dismissal of the taxpayer's appeal.
Judgment of March 21, 2024 (9C_658/2023): Intercantonal double taxation; the subject of the proceedings was the unlimited tax liability of A_AG in the canton of Ticino from 2017. The main tax domicile of a legal entity is generally determined by its freely chosen registered office, which is defined in the articles of association and entered in the commercial register. If the registered office does not reflect the actual circumstances or appears to have been artificially created, the place of actual management and administration is decisive. In the present case, this is in the canton of Ticino on the basis of various indications, particularly as there is only one domicile in Zug with costs of CHF 350 per month. Dismissal of the taxpayer's appeal.

Judgment of April 2, 2023 (9C_68/2023); Direct federal tax and state and municipal tax 2014 (Geneva): In principle, only the amounts specified in the divorce decree can be deducted as periodic maintenance payments to the divorced spouse for the upkeep of the children. If no distinction can be made between costs in connection with the exercise of custody and maintenance costs, all costs cannot be deducted. Dismissal of the taxpayer's appeal.
Judgment of March 18, 2024 (9C_328/2023): State and municipal taxes (Zurich) and direct federal tax from 2018; The Federal Supreme Court confirms the revocation of the tax exemption of a previously tax-exempt association within the meaning of Art. 56 lit. g DBG (operation of day-care centers for children) due to the primary purpose of acquisition and the existence of competitive relationships. Dismissal of the appeal of the now taxable association.
Judgment of March 27, 2024 (9C_152/2024): Direct federal tax and state and municipal taxes 2015 (Zurich); appeal, free administration of justice; The Tax Appeal Court did not consider an appeal request due to the lack of timely payment of the advance on costs. The appellants are not able to invalidate the legal consequence of the fiction of service, which is why the lower court rightly concluded that there was no prospect of success and dismissed the application for free administration of justice. Dismissal of the taxpayers' appeal.
Judgment of April 9, 2024 (9C_157/2023); subsequent recovery of import duties; dismissal of the appeal against the decision of December 22, 2022(A-5139/2021), see our article of January 22, 2023.
Judgment of April 9, 2024 (9C_497/2023); subsequent claim for import duties; dismissal of the appeal against the decision of June 13, 2023(A-5044/2021), see our article of July 2, 2023.
Judgment of April 9, 2024 (9C_469/2023): Direct federal tax and cantonal and municipal tax 2019 (Geneva); At issue in this case is the commercial justification of a provision made by A AG due to future rental and conversion obligations. As part of a construction project taken over by Pension Fund C, A AG guaranteed future rental income for the next three years with payment at the end of the three-year period. This was in the event that no new tenant could be found during this period. A AG also undertook to pay any conversion costs. The tax authorities of the Canton of Geneva offset the provision made in 2019, as the outflow of assets appeared (too) uncertain and was also too far in the future. The same applied to the provision for the renovation work. The Federal Supreme Court followed the view of the tax authorities and in particular considered the periodicity principle to have been violated. Dismissal of the taxpayer's appeal.