Overview of the tax rulings of the Swiss Federal Supreme Court published between January 8 - 14, 2024:
- Judgment of December 7, 2023 (9C_312/2023) - scheduled for publication; transfer tax of the Canton of Fribourg; A AG took over the management of the contractual investment fund B from E AG and was entered in the land register as the new owner of the properties of fund B. The competent land registry office considered this to be a transfer subject to transfer tax. The Federal Supreme Court referred to its leading decision BGE 148 II 121, which had protected the levying of transfer tax in the event of a change of fund management (change of ownership under civil law). The FSC rejected further arguments of A AG, in particular it held that if the change of fund management is in the interest of the investors, any transfer tax triggered by this may also be passed on to the investors; dismissal of the appeal of A AG.
- Judgment of December 18, 2023 (9C_750/2023): State and municipal taxes and direct federal tax 2008 (Zurich); In dispute and to be examined is the set-off made in the subsequent tax proceedings due to a pecuniary benefit made by the company to the former sole shareholder. The heirs are of the opinion that the subsequent tax proceedings have no legal basis because it should have already been clarified in the assessment proceedings at the time whether the tax return was complete and that the administrative court assumed the margin model, although it was conclusively argued in the subsequent tax proceedings that the company had followed the commission model. The heirs seem to assume that the findings of judgment 2C_688/2021 of January 27, 2022 (see our article of February 27, 2022) are more or less fully available in the present proceedings and that the case can therefore be reopened in its entirety. This is not the case. According to established Federal Supreme Court case law on two-dimensional matters, there is no actual automatic set-off at the level of the shareholder. In particular, the existence, qualification and amount of a set-off at the level of the company on the one hand and at the level of the shareholder on the other follow their own logic. A new legal assessment on the one hand and at the level of the shareholder on the other is essential, especially as the company and the person holding an interest in it are two independent legal and tax entities. However, in deviation from the usual rules on the burden of proof, a shareholder who is also a corporate body and/or controlling shareholder of the company must dispute in detail the existence and amount of a pecuniary benefit claimed by the assessment authority. If he fails to do so or limits himself to general statements, the assessment authority may in principle assume that the set-off legally assessed at company level is just as justified vis-à-vis the shareholder as it is vis-à-vis the company(judgments 9C_624/2022 of March 15, 2023 E. 5.2.5., see our article of April 2, 2023). The objections raised by the heirs do not meet these requirements. In the present context, the assessment authority did nothing other than carry out the same set-off at the level of the sole shareholder that it had already (legally) carried out at the level of the company. Dismissal of the appeal.
Decisions on non-admission and write-offs:
Decisions are listed chronologically by publication date.
