Overview of tax law decisions of the Swiss Federal Supreme Court published between May 8 - 21, 2023:
- Judgment of 19 April 2023 2023 (9C_670/2022): State and municipal taxes 2016 (Geneva); The question of the property tax value of a real estate is in dispute. The real estate was transferred to the community of heirs in 2010 as a result of inheritance. For the undisputed assessment of the inheritance tax, the appraised value determined by the Canton of Geneva in the amount of approximately CHF 6.1 million was used, which from then on also formed the basis for the determination of the property tax value. In 2015, the community of heirs concluded a "sale contract with right of purchase" regarding the real estate with the third party C at a price of approximately CHF 4.2 million. Therein, it was stipulated that the community of heirs and C undertake to conclude a purchase agreement at the agreed price upon request of one of the parties, provided that the parcel has been released from all encumbrances in the meantime (lease agreements, etc.). As security for the promise to sell, the heirs granted C an unconditional ten-year right to purchase. In 2020, C exercised his right of purchase and the property was transferred at a price of CHF 4.2 million. With regard to the property tax value of the real estate for the year 2016, the heirs took the position that a real market value (CHF 4.2 million) now existed for the real estate upon conclusion of the "sales contract with right of purchase" from 2015. The lower courts did not follow this opinion. From the point of view of the sellers, the "Sale Agreement with Right to Purchase" is merely a conditional sale, the realization of which depends not only on the fulfillment of the conditions (release from all encumbrances), but also on the exercise of the right to purchase by one of the parties. Accordingly, the sale was in abeyance until the closing and no market value could be realized until that time that could have displaced the appraised value. Dismissal of the appeal.
- Judgment of April 19, 2023 (9C_672/2022): State and municipal taxes and direct federal tax 2010 (Vaud); Indirect partial liquidation; In dispute is whether the sale of the shares of C. AG to B. AG carried out by A. and B. qualifies as an indirect partial liquidation. B. AG took out a loan with the taxpayers and one with Bank D, which was secured by the pledge of the C. AG shares. The distribution condition was no longer really in dispute before the cantonal court. Indeed, it was established that C. AG had transferred part of its substance in the form of a loan to B. AG, although due to the circumstances it could not be assumed that B. AG would repay the loan. B. AG was dependent on the cash flow of C. AG in order to (unsuccessfully) meet its obligations towards Bank D. . The cantonal court also assumed that the requirement of participation of the complainants was fulfilled, since they had passively participated. It would have been the task of A. and B. to inform themselves about the financial capacity of B. AG. Indeed, if they had carried out a creditworthiness check, they could not reasonably have ruled out that the latter would have to resort to substance of C. AG to finance the purchase price. The Federal Supreme Court agreed with these points and affirmed the existence of an indirect partial liquidation. Dismissal of the taxpayer's appeal.
- Judgment of April 19, 2023 (9C_733/2022): Absenteeism of a tax official (TI); dismissal of the appeal.
- Judgment of 24 April 2023 (9C_676/2022): State and municipal taxes 2012 and 2013 (withholding taxes Geneva);There was no legal basis for the practice of the tax authorities, which calculated the income earned in Switzerland on an annual basis (annualization) and on the basis of full-time employment in order to apply the tax rate. Appeal of the taxpayer (employee resident in France) upheld.
- Judgment of 24 April 2023 (9C_638/2022): State and municipal taxes 2013 (Geneva); Property guarantee, wealth tax brake (bouclier fiscal); The lower court correctly calculated the wealth tax brake (bouclier fiscal) in the present case, applying the 1% notional wealth income on the undistributed inheritance in accordance with the law. Dismissal of the appeal.
Decisions of non-admission and administrative assistance:
Decisions are listed chronologically by publication date.