Decisions of the Swiss Federal Supreme Court (CW 19 - 2020 )

Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 4 May - 10 May 2020.

Judgement of 17 March 2020 (2C_911/2018): State and municipal taxes 2010-2013 (St. Gallen); The couple was unable to prove that the centre of their lives was in the Canton of Graubünden; credit card statements, shopping and petrol station receipts rather testify to their predominant residence in the Canton of St. Gallen. Gallen; Even when one spouse was abroad, he travelled several times through Zurich airport and presumably stayed overnight in the "apartment of high standard" above the office premises; dismissal of the taxpayers' complaint.
Judgement of 8 April 2020 (2C_765/2019): Administrative assistance Double taxation agreement between Switzerland and Spain; see also our contribution of 8 September 2019; the request for administrative assistance does not meet the formal requirements. The Federal Administrative Court (sic!) has to give the requesting authority the opportunity to supplement its request; partial approval of the appeal by the persons concerned.
Judgment of 26 March 2020 (2C_663/2019): State and municipal taxes 2015 (Zurich); Intercantonal double taxation resulting from the statutory transfer of a company's registered office from the Canton of Zurich to the Canton of Zug; The taxpayer's conduct towards Zug proves to be disloyal and thus an abuse of the law; The taxpayer is therefore liable for its legal arrangement and must bear the consequences of the double taxation caused by its conduct; dismissal of the taxpayer's appeal.
Judgment of 3 April 2020 (2C_29/2020, 2C_79/2020): Value Added Tax (2011-2015); see also our contribution to the lower court of 22 April 2020 (2C_29/2020, 2C_79/2020). The complainant taxable person was acting in the name and for the account of B AG, which is why B AG was a provider of services subject to VAT and the complainant only acted as its representative (agent); The complainant's activity did not consist in the operation of a take-away branch, but in the sale of the foodstuffs supplied in the name and for the account of B AG; Accordingly, the taxation of the complainant's services must be based on its activity as an agent and therefore the balance tax rate of 6.1%; The taxpayer as a layperson should have been aware that it is significant whether someone provides services in his own name and for his own account or in the name and for the account of a third party; In case of doubt, she could and should have addressed a request to the FTA; However, the right to determine the tax claim for the 2011 tax period was time-barred, which is why the FTA's complaint is dismissed; Dismissal of the taxpayers' complaint.
Judgement of 7 April 2020 (2C_989/2019): Direct federal tax and state and municipal taxes 2005-2006 (Schwyz); the existence of a payment in kind was in dispute; the sole shareholder received a commission which was not declared and was rightly offset; dismissal of the taxpayer's complaint.