Overview of the tax law decisions of the Swiss Federal Supreme Court published during the week of 26 April - 2 May 2021.
- Ruling of 22 March 2021 (2C_964/2019): Value added tax; joint and several liability of liquidator/administrator; In the present case, the liability requirement of a positive liquidation result within the meaning of Art. 15 para. 1 lit. e VAT Act was not met. In accordance with the case law on Art. 15 para. 1 lit. a VStG, the liquidation result is to be understood as the amount which remains for the company after the debts and the liquidation costs have been repaid. In view of the fact that the group parent's debts in the present case outweighed its assets by several million, it must be assumed that the proceeds generated by the group parent during the liquidation phase were not sufficient to offset the debts; the FTA's appeal is dismissed.
- Judgment of 9 April 2021 (2G_1/2021): Explanation and correction to the judgment of the Federal Supreme Court 2C_974/2019; partial approval in the sense of the addition to the dispositive or otherwise rejection of the application.
- Judgment of 14 April 2021 (2C_564/2020): Transfer of ownership tax; in dispute is whether the transfer (sale) of the water concession from the SBB and the related parcel of land to A. AG, in which SBB holds 36% of the share capital, constitutes a restructuring. The lower court concluded that the transaction did not meet the requirements of a restructuring. It also did not examine whether there was a horizontal split (spin-off), although A. AG had invoked it. The Federal Supreme Court concluded that a spin-off existed and therefore, pursuant to Art. 103 of the Merger Act, no transfer tax was levied in connection with the transfer of the parcel of land provided for in this deed. The appeal of the taxpayer was upheld.
- Judgment of 15 April 2021 (2C_133/2021): Direct Federal Tax and State and Municipal Taxes 2018 (Fribourg); Since the complainant is both a pension beneficiary and a beneficiary, he is liable to pay tax on the lump-sum benefit from the pension scheme (pillar 3a). The lower court rightly did not take into account a private agreement to the contrary. Dismissal of the taxpayer's appeal.
- Ruling of 22 March 2021 (2C_662/2020): Direct Federal Tax and State and Municipal Taxes 2014 (Schwyz); Transfer of a business property to private assets due to discontinuation of self-employment. The market value of the property previously used as a paediatric practice is to be determined on the basis of the respondent's decision, due to the inalienability of the business property, to put it to another use. The fact that the new use may lead to a lower market value than the determination of the market value on the assumption of the continuation of the previous or a similar use is irrelevant. The basis for the determination of the market value of the respondent's paediatric practice at the time of the abandonment of the practice must therefore be its value after the conversion necessary for the conversion into a dwelling has been carried out. The costs of the necessary conversions must then be deducted from this value. The appeal of the tax administration is partially upheld.
- Judgment of 18 March 2021 (2C_797/2020): State and municipal taxes 2016 (Lucerne), double taxation; The complainant, domiciled in the Canton of Zug, maintained an internal logistics centre in the Canton of Lucerne (3,000m2; 4-5 employees). The dispute was whether the complainant thus established a permanent establishment in the Canton of Lucerne. According to the case law of the Federal Supreme Court, a permanent establishment requires a permanent physical facility that forms part of the non-cantonal enterprise and in which the latter carries out a qualitatively and quantitatively significant activity. While the complainant undoubtedly had a permanent physical establishment in the canton of Lucerne, it was disputed whether a qualitatively and quantitatively significant activity was carried out in this establishment. In the present case, the activity in the logistics centre was considered to be qualitatively significant, as it could not be eliminated without also eliminating the service distributed by the complainant. Although the rental and personnel costs caused by the logistics centre appeared to be low in relation to the overall business, according to the settled case law of the Federal Supreme Court, the quantity is to be assessed on the basis of the business activity as such (i.e. in absolute terms), which in the present case also led to the affirmation of the quantitative element and thus of the permanent establishment in the Canton of Lucerne. Dismissal of the taxpayer's appeal.
Decisions are listed chronologically by publication date.
