Overview of the tax law decisions of the Swiss Federal Supreme Court published in the weeks from 29 June - 12 July 2020.

  • Judgment of 19. May 2020 (2C_880/2018): Withholding tax (refund); The dispute concerns the claim for a refund of withholding tax on a dividend in accordance with the DBA CH-GB; It follows from the contractual documents that the appellant's payment obligations under the derivative contracts amounting to 15% of the gross dividend depended on the fact that it acquired the shares; Furthermore, the appellant carried out transactions which were structured in such a way that it received the dividend which it subsequently had to pay to counterparties which were not residents of any Contracting State. If she was allowed to refund the withholding tax, she also had to contractually pass on part of it; Thus, there is a passing-on of profits; The right of use must be denied; Dismissal of the taxpayers' complaint. ‍
  • Judgment of 8. June 2020 (2C_994/2019): Tax domicile; the dispute is whether the complainant's tax domicile is in the Canton of Ticino or the Canton of Vaud; he claims in particular that his main residence is with his parents in the Canton of Ticino; It is unusual here that his place of residence (Vaud) is not the same as his place of work (Geneva) or the place of residence of his partner (Ticino) or his family (Ticino); in the absence of a joint residence in the Canton of Ticino, the main tax domicile is in the Canton of Vaud; rejection of the taxpayer's complaint. ‍
  • Judgment of 26 May 2020 (2C_985/2019, 2C_45/2020): Inadmissibility of the action for non-payment of the advance fee; It is lawful for cantonal law to provide for a non-payment decision in the event of non-payment of the advance fee; dismissal of the taxpayers' appeal. ‍
  • Judgment of 14 May 2020 (2C_274/2020): Direct federal tax and state and municipal taxes 2018 (Schaffhausen); non-remunerated administration of justice. The complainant paid monthly maintenance contributions to his daughter living in Germany as well as to her mother; in addition to his own indigence, the complainant must prove the lack of funds of the child's mother, the adequacy of the agreed childcare maintenance and the fact that he actually paid the agreed childcare maintenance, which was not the case in the present case; dismissal of the taxpayer's complaint. ‍
  • Judgment of 14 May 2020 (2C_652/2018): Direct Federal Tax and State and Municipal Taxes 2016 (Solothurn); The complainant received lump-sum benefits and made purchases in the 2nd pillar in close proximity thereto; However, since these lump-sum benefits did not come from the 2nd pillar but from pillar 3a and there is no tax avoidance, the deduction is to be granted; Approval of the taxpayers' complaint ‍
  • Judgment of 14 May 2020 (2C_946/2019): Direct Federal Tax 2005 (Statute of Limitations); The taxpayer received lump-sum accident insurance benefits on 4 February 2005 and 10 March 2005 respectively due to an accident; On 28 February 2005 and 10 March 2005 respectively, the taxpayer was entitled to a lump-sum accident insurance benefit. On 28 December 2005, the taxpayer moved his place of residence from Basel-Land to Nidwalden; The tax office of the Canton of Nidwalden taxed the lump-sum benefit; The objection raised against the order was upheld and taxation was waived due to lack of jurisdiction; Subsequently, the Federal Court recognised the lump-sum benefit as a taxable income in its ruling 2C_298/2015, 2C_299/2015 of 26 April 2017 (cf. our contribution of 28 April 2017). May 2015) that the canton of Nidwalden had jurisdiction to tax the lump-sum benefits paid out; On 8 May 2015, the Federal Supreme Court ruled On 8 June 2017, the tax office of the Canton of Nidwalden again issued an assessment and taxed the entire lump-sum payment; The right to assess the direct federal tax expires five years after the end of the tax period in question, whereby the assessment limitation period is suspended during an objection procedure; The objection procedure of the Canton of Basel Land (which is not responsible) cannot be taken into account in the present proceedings; The assessment of 8 June 2017 was therefore made after the relative limitation period; Approval of the taxpayers' appeal. ‍
  • Judgment of 24 June 2020 (2C_41/2020): Direct federal tax and cantonal and communal taxes 2003-2012 (Geneva); The present case concerns the fact that a mother received CHF 30,000 per month from a foundation in which her son is a beneficiary, which she did not pay tax on. It was disputed for which periods an after-tax proceeding, a proceeding for tax evasion and a proceeding for attempted tax evasion may be conducted; the Federal Supreme Court concludes that the years 2003 and 2004 are time-barred; With regard to the tax evasion proceedings concerning the monthly contributions as well as the tax consequences of the sale of a share in the co-ownership of a building in France (previously also not taxed) in 2006, a property in London in 2011 and the establishment of two mortgages on a flat in Geneva in 2010 and 2011, the appeal is admitted; Dismissal of the appeal and referral back to the lower court for a decision in the sense of the recitals.

Inadmissible appeals / non-admission decisions / write-offs

Decisions are listed chronologically by publication date.

Tax topics covered in this post:
Withholding Tax
Other Taxes
Wealth Tax
Income Tax