Overview of the tax law decisions of the Swiss Federal Supreme Court published between 23 - 29 May 2022:
- Ruling of 21 April 2022 (2C_702/2020): Direct Federal Tax 2012 (Zurich); The Zurich tax office qualified a property sale as self-employment. The Administrative Court explained that the respondents had only managed their private assets. Private assets are managed even if the assets are extensive, professionally managed and commercial accounts are kept. This even applies where the owner builds over his property in order to obtain a profit from renting it out. The lower court further held that self-employment could not be assumed if the investments made were not of a commercial nature. The sale was not the result of profit-seeking and planned behaviour, but rather the exploitation of an opportunity that presented itself. The counter-arguments of the tax office are not convincing. Dismissal of the tax office's appeal.
- Judgment of 4 May 2022 (2C_1027/2020): Causal levies (water connection fees); dismissal of the appeal of the levy payers insofar as it is upheld.
- Judgment of 9 May 2022 (2C_799/2021): Cantonal and communal taxes and direct federal tax 2015-2016 (Graubünden); in her will, B. had appointed the establishment she had set up in Liechtenstein as the sole beneficiary of her estate and in the (later) by-laws had designated herself as the sole beneficiary of the establishment during her lifetime with a succession arrangement upon her death ("secondary beneficiary"). The latter provides, among other things, for a donation in tranches to the complainant A. The complainant A. was the only beneficiary of the institution during his lifetime. It was disputed whether the gifts made by the institution to A. after the death of B. could be qualified as an income tax-free accrual of assets as a result of a bequest or gift. It is true that B. manifested her intention to bequeath something to A. after her death with the by-laws during her lifetime; however, she deliberately chose the indirect route via the institution. There was neither a legal relationship between B. and A. nor a direct bequest. In the present case, the establishment is to be regarded as an independent legal entity under tax law at the latest upon the death of its founder, B. It does not represent a mere "successor". It does not represent a mere "estate vehicle". It is true that the establishment allocates the donated assets to the purpose specified by the founder and is active in this respect; however, this does not lead to the fact that the donations to the beneficiaries can be (indirectly) attributed to the founder/decedent B. for tax purposes as a gift or donation on account of death. The fact that this results in taxation at the level of the establishment and at the level of the beneficiaries leads, in the absence of an identical taxable entity, to a double burden, but not to double taxation and thus does not justify any recourse. An economic approach is also out of the question in the present case, since in the present case the tax exemption of Art. 24 lit. a DBG is fundamentally linked to the civil law concepts of bequest and gift. Finally, it cannot be assumed that the Establishment made a gift to A.. The tax exception therefore does not apply. Dismissal of A.'s appeal
Non-entry decisions:
Decisions are listed chronologically by publication date.
