Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 25 - 31 May 2020.
- Judgement of 20 April 2020 (2C_743/2019): Direct Federal Tax and State and Municipal Taxes 2013 (Zurich); The Federal Supreme Court had to assess whether the consideration received by the complainant for the sale of the claim to loan interest for the period between November 2009 and the closing at the end of 2013 should be qualified as taxable income or as tax-free private capital gains. To date, the Federal Supreme Court has not yet had to rule on the question of what happens in constellations such as the present one, i.e. in the case of accrued interest on a one-off (individual) loan that does not fall under the definition of a bond within the meaning of Art. 20 para. 1 lit. b DBG. In this respect, the Federal Supreme Court states that the above-mentioned special provision applies not only in the specifically regulated area of bonds with predominantly one-off interest, but also to the accrued interest on the sale of a loan debt of a simple loan debt with one-off interest. Dismissal of the appeal.
- Judgement of 27 April 2020 (2C_830/2019): Direct Federal Tax and State and Municipal Taxes 2012 (Berne); The Federal Supreme Court had to decide which taxation modalities apply to lump-sum taxation for a married couple, whereby only the spouse who fulfils the subjective conditions for lump-sum taxation (under the old law) opts for lump-sum taxation. In this context, it also had to assess which property was to be used for the calculation of the minimum expense if a taxpayer had several properties for his or her own use. In this respect, it stated that it is in conformity with the law if, in the case of several properties for own use, the property with the higher imputed rental value is used at the taxpayer's tax domicile or residence. However, only the expenses of the flat-rate taxed complainant are to be taken into account. Since the couple each used half of the property in question, only five times half of the rental value is relevant. Partial acceptance of the complaint.
- Judgment of 12 May 2020 (2C_731/2019): Direct Federal Tax and Cantonal and Municipal Taxes 2012 (Geneva); The dispute concerns the refusal to take into account the loss brought forward by the appellant on the grounds that it constitutes tax avoidance. With regard to the loss carryforward, the Federal Supreme Court ruled that it is not a normal business practice for an economically healthy and profitable company to transfer all its business assets to an over-indebted third party company. There are no economic reasons for the present merger by absorption. The merger enabled the profits of one company to be offset by the losses carried forward by the other company, so the prospect of tax savings alone is the reason. Dismissal of the appeal.
- Judgement of 1 May 2020 (2C_450/2018): Withholding tax 2005-2008; the dispute concerns payments in kind in connection with two loans that were granted by the shareholder as determined by the court of first instance but (partially) repaid to him on the same day by another Group company. Nevertheless, the shareholder has asserted a claim based on the two loans. The withholding tax claims still in dispute are not yet time-barred - the FTA has interrupted the limitation period in good time within the meaning of the five-year limitation period pursuant to Art. 17 of the Swiss Federal Tax Act. In this respect, it is not necessary to address the considerations of the lower court regarding the statute of limitations under administrative criminal law. The various procedural and factual complaints of the taxpayer (complainant) do not interfere with the statute of limitations. It can also be left open in the present case whether the reporting procedure under Art. 26a VStV (in connection with Art. 20 and 70c VStG) would have been permissible in the present case, in particular the question of whether a "group relationship" exists in the present case. Dismissal of the taxpayers' complaint.
- Judgement of 30 April 2020 (2C_175/2019 / 2C_198/2019 / 2C_199/2019): Direct Federal Tax and State and Municipal Taxes 2010-2011 (Schwyz); dissolution of ZH-Kollektivgesellschaft with transfer of the properties to a legal entity in Canton SZ held by the three shareholders; in the present case, there is no tax-neutral restructuring, as the (part) (real estate) operating requirement is not fulfilled. Consequently, there are inevitably tax-deductible disposals that must be made at third-party price conditions (privileged liquidation gain Art. 37b DBG). Dismissal of the layman's complaint, insofar as it is upheld.
Decisions are listed chronologically by publication date.
