Overview of the tax law decisions of the Swiss Federal Supreme Court published between 9 - 15 May 2022:
- Rulings of 14 April 2022 (2C_597/2019): State and municipal taxes and direct federal tax 2014 (Zurich): At B. AG, depreciation was added for a non-value. A. AG in liquidation demanded that this be recognised as a hidden capital contribution and filed an application for revision. The lower court denied a permissible ground for revision. The Federal Supreme Court recently ruled that an advantaged sister company can appeal an assessment that has already become legally effective (in the first canton) and demand a so-called counter-adjustment if the benefit has been offset at the donating company (in the second canton). The offsetting at the donating company (so-called primary adjustment) means a significant fact for the assessment of the advantaged sister company within the meaning of Art. 51 para. 1 lit. a StHG. However, a revisionary counter-adjustment requires in any case that the behaviour of the companies involved does not appear to be downright abusive or disloyal. In this case, there was abusive behaviour. The sole aim was to shift profits from B. AG to A. AG in liquidation in order to reduce the tax burden of B. AG. Dismissal of the appeal of A. AG in liquidation.
- Judgment of 27 April 2022 (2C_674/2021): Post-tax proceedings, state and municipal tax and direct federal tax 2007 to 2014 (Geneva): The complainants consider the approach of the tax administration to be a violation of the right to be heard. Since in the present case the tax-reducing evidence had to be provided by the complainants and the factual situation was not very complex, there was no violation of the right to be heard. Dismissal of the appeal.
- Judgment of 27 April 2022 (2C_1005/2021): Military service levy 2018; According to Art. 59 para. 1 BV, every Swiss citizen is obliged to perform military service. Swiss nationals who do not perform military or alternative service owe a levy under Art. 59 para. 3 BV. The lower court was of the opinion that the respondent had not been subject to the substitute levy under the old law, or had not been subject to it at any time, because at the time of his naturalisation in 2013 he had already exceeded the age limit of 30 years pursuant to Art. 30 para. 2 lit. a aWPEG. Applying the revised provisions of the Military and Military Service Tax Act, which entered into force on 1 January 2019, to the respondent, as requested by the FTA, would therefore constitute a genuine retroactive effect of these legislative amendments. The Federal Supreme Court shares the opinion of the lower court that the conditions for a genuine retroactive effect were not met in casu. The appeal by the FTA is dismissed as unfounded.
- Judgments of 8 April 2022 (2C_317/2021): Staats- und Gemeindesteuern und direkte Bundessteuer 2011 (Zurich): A., partner in a law firm, was a member of the board of directors of B. AG. He bought 33% of the share capital of B. AG in October 2008, then sold 4.58% in 2009 and 28.42% in 2010. In 2013, he bought back 31.75% of the share capital again. The tax office considered this to be income from self-employed secondary gainful activity. The lower court held that the profit from the sale of the shares had accrued to the complainant in the 2011 tax period and that the realised capital gain was not offset by any neutralisation of the accrual in the form of a guarantee declaration. However, this transaction was characterised by an extraordinarily high transaction volume and complete debt financing. In addition, a systematic and planned orientation towards the realisation of profits can be recognised. An amount of CHF 56,500 was also offset as income from employment. This offset is based on findings of fact that are binding for the Federal Supreme Court. Dismissal of the appeal of taxpayer A.
Non-entry decisions:
Decisions are listed chronologically by publication date.
