Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 10 - 16 May 2021.

  • Judgment of 27 April 2021 (2C_845/2020): VAT 2011-2014; reduction of the taxable consideration; the Federal Supreme Court upholds the appeal on the grounds of violation of the right to be heard and sets aside the judgment of the Federal Administrative Court of 7 September 2020 (A-6249/2018). The case is referred back to the lower court for reassessment. For details, see our article of 20 September 2020.
  • Judgment of 21 April 2021 (2C_298/2021): Notary and land registry fees (Zurich); The basis of assessment is the market value, not the gift value (i.e. market value less the value of the reserved right of residence and use); Dismissal of the complaint of the party liable to pay the fees.
  • Judgment of 22 April 2021 (2C_257/2021): Staats- und Gemeindesteuern und direkte Bundessteuer 2015 - 2017 (St. Gallen); Advance on costs; The lower court rightly dismissed a request for restoration of the time limit for making an advance on costs. The appellant is unable to show how the lower instance violated its procedural obligations in determining the facts. The same applies to the violation of Articles 5, 7, 8 para. 2 and 9 of the Federal Constitution as well as Articles 6 and 14 of the ECHR. Dismissal of the taxpayer's appeal.
  • Judgment of 27 April 2021 (2C_60/2020): Direct federal tax and state and communal taxes; withholding tax 2008-2013 (Geneva); In the present case, A. AG is accused of not annualising the income of the doctors employed by it and subject to withholding tax in order to determine the applicable tax rate and of not having settled the withholding tax on cash payments. It was disputed whether the present case involved subsequent claim proceedings pursuant to Art. 138 para. 1 DBG or subsequent tax proceedings pursuant to Art. 151 et seq. DBG, as the statute of limitations would have been different depending on the case. After-tax proceedings require the existence of a legally binding ruling, which was affirmed in the present case. However, the lower court wrongly refused to examine whether the requirements for post-tax proceedings were met at all; rather, it would have been obliged to do so ex officio. The complaint of formal denial of justice is therefore well-founded. Furthermore, the outcome of any subsequent tax proceedings must be known in order to be able to decide on the existence of tax evasion. Appeal filed by the complainant A. AG is upheld and the matter is referred back to the lower court to proceed in accordance with the recitals.
  • Judgment of 03 May 2021 (2C_231/2021): Kurtaxe 2019; The dispute in this case is whether the visitor's tax must be paid. The municipalities have the option of providing for a flat-rate visitor's tax. It also does not violate the principle of equal treatment if a person who owns a second home is treated differently from persons who have a permanent residence in the respective municipality. Dismissal of the complaint of the taxpayer.
  • Judgment of 14 April 2021 (2C_345/2020): VAT 2015; The dispute in this case is whether the law firm Prof. Dr. A. & Dr. B Rechtsanwälte was a taxable entity in the 2015 tax period and whether Prof. Dr. A. may be held personally liable for the VAT arrears incurred. The tax liability was affirmed, since the law firm as a group of persons acted as a service provider vis-à-vis the outside world or in dealings with third parties. Due to the manner of the external appearance with the mention of the name of the complainant Prof. Dr. A. in the name of the law firm, a continuing contractual agreement between the two lawyers must be affirmed. It is irrelevant that Prof. Dr. A. is now a consultant and works mainly on scientific projects. However, it is not apparent to what extent it must necessarily follow from this that certain turnover possibly achieved by Dr. B alone should have been included in the basis of assessment. In this respect, Prof. Dr. A's appeal is upheld and referred back to the lower court to supplement the facts of the case.

Non-entry decisions:

Decisions are listed chronologically by publication date.

Tax topics covered in this post:
Income Tax
Value Added Tax (VAT)
Other Taxes