Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 7 to 13 January 2019.
- Judgment of 18 December 2018 (2C_674/2018): A sole proprietor entered in the commercial register had transferred several properties, which had been listed in a previously obtained ruling, to several limited liability companies and then had them deleted from the commercial register. No property transfer tax was levied on this. About two years later, he had himself re-registered and deleted at short notice in order to transfer two further properties. Since the second transaction could not be considered together with the first (contrary to the taxpayers' submissions), the Federal Court examined the exemption of the second transaction from the property transfer tax separately. The exemption from the property transfer tax pursuant to Art. 103 FusG in conjunction Art. 8 para. 3 lit. b StHG requires two things: (i) the existence of a restructuring and (ii) the existence of an establishment. Nowhere is the concept of restructuring regulated by law. The transfer of assets pursuant to Art. 69 et seq. FusG, which is accessible to almost all legal entities, is in any case one of them, and this is the case here. However, the operational requirement is missing in the present case. Rejection of the taxpayers' complaint.
- Judgment of 18 December 2018 (2C_675/2018): Scope of application of Art. 103 FusG. Entry of the complainant in the Commercial Register for the purpose of processing a transfer of several properties to a newly founded legal entity, which was, among other things, exempt from property transfer tax. Re-registration in the commercial register of the complainants a few years later for the purpose of transferring two further properties which were forgotten (sic!) in the course of the first transfer. Art. 103 FusG requires (i) a restructuring - in the context of Art. 69 FusG this means that the transferring natural person must be registered in the Commercial Register - and (ii), in the present context of the transfer of assets from a natural person to a legal entity, a holding. In the present case, the two transferred properties (one of them as undeveloped property) did not fulfill the latter condition. Dismissal of the appellants' appeal.
Decisions are listed chronologically by publication date.
