Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week 22 - 28 April 2019.

  • Judgment of 4 April 2019 (2C_294/2019): Direct federal tax 2014 (Aargau). "The reinstatement to the previous status [Art. 133 para. 3 DBG] is only to be ordered for direct tax purposes if the taxpayer proves that he was prevented from filing the appeal in time by substantial reasons - in particular illness - and that the appeal was filed within 30 days after the removal of the obstacles (formal requirement; [...]" (E. 3.1.). The taxpayer was unable to prove that there were sufficient grounds for an impediment within the meaning of Art. 133 para. 3 DBG. The appeal is dismissed.
  • Judgment of 28 March 2019 (2C_702/2018): Direct federal tax and state and municipal taxes 2012-2014 (Valais); indirect partial liquidation; the appellant (BF) had sold its shares in C. SA in 2010 as part of a community of heirs, which had previously been held 70% by E. SA and 30% by the community of heirs (7.5% by BF) The buyer was I. SA. In 2014, E. SA decided to pay an extraordinary dividend to C. SA in connection with its merger with another company. Against this background, the question arose as to whether there was an indirect partial liquidation (ITL). First of all, it had to be examined whether the fact that the sale had already been taxed under the title of transposition for two of the total of four heirs (15%) meant that the 20% threshold of the ITL offence was not reached. This was denied by the BG. However, the Federal Court of Justice finally denied the existence of an ITL, in view of the requirement for the seller to cooperate. This was a subjective element which was given if the seller knew or had to know that the purchase price would be financed by funds of the object of purchase and the funds would not be returned to him. In the present case, it was not clear to what extent BF should have known in 2010 of an intention of I. SA to finance the purchase price by means of funds of C. SA, as it was not the buyer I. SA but the majority shareholder E. SA who was responsible for the purchase. SA had effected the distribution in 2014. In general, the Federal Court of Justice then emphasizes that the existence of non-essential, distributable substance under commercial law is not in itself sufficient to affirm the subjective element on the part of the seller.
  • Judgment of 28 March 2019 (2C_703/2018): Direct federal tax and state and municipal taxes 2010 (Valais); indirect partial liquidation; for details see the above decision of 28 March 2019 (2C_702/2018).
  • Judgment of 5 April 2019 (2C_660/2018): Official estimate (Graubünden); determination of the imputed rental value; no arbitrariness is apparent in the determination of the imputed rental value The appeal proves to be unfounded and is dismissed.
  • Judgment of 20 March 2019 (2C_942/2018, 2C_981/2018): Inheritance Taxes (St. Gallen); the lower court had erroneously overestimated the movable assets; the cantonal tax office confirmed the error of the lower court and the Administrative Court also admitted the error in its opinion, but had only been informed of the calculation error after the opening of its ruling, so that it could not correct it itself. Consequently, the Federal Supreme Court upheld the taxpayer's appeal and referred the matter back to the Administrative Court for recalculation.

Non-occurrence decisions / inadmissible complaints:

Decisions are listed chronologically by publication date.

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