Overview of tax law decisions of the Swiss Federal Supreme Court published between July 18 - 24, 2022:
- Judgment of 10 June 2022 (2C_638/2021): Withholding tax (2009-2012); Monetary benefits due to receipt of commission income via black accounts; It is disputed whether the principle "ne bis in idem" is violated if, in addition to the tax evasion, the withholding tax is also levied retroactively. In principle, withholding tax must be paid unconditionally as soon as it has arisen and become due. There is no reason why it should no longer be owed after and on the basis of the fulfillment of Art. 61 VStG, because otherwise those taxpayers who duly fulfill their tax obligations would be placed in a worse position. The subsequent payment of withholding tax does not constitute a conviction in the criminal law sense. The forfeiture of the refund according to Art. 23 withholding tax law does not constitute a fine. A statute of limitations according to Art. 17 VStG is also to be denied. The statute of limitations according to Art. 12 VStR is also not given. In the case to be judged here, the objective elements of the offense according to Art. 61 VStG are fulfilled. The decisive factor for the commission of the offence is when the company breached its duty to declare or should have submitted its annual financial statements. Dismissal of the taxpayer's appeal.
- Judgment of 06 July 2022 (2C_540/2021): Administrative assistance DTA CH-IN; The complainants A.A. and B.A. have raised the question whether the transmission of bank information is permissible if the accounts were opened in the name of companies which are in turn held by an Irrevocable Discretionary Trust in which the persons concerned by the request for administrative assistance are beneficiaries. It is not the task of the requested State to carry out an analysis of the trust structure and to determine the tax treatment of its income and assets. This would go beyond the scope of a plausibility check. The same applies to the question of how receipts and payments in a bank account indirectly held by a trust should be treated for tax purposes. The requesting authority has stated that the complainants had business relationships with several persons and organizations that have accounts with the bank. In vain, the complainants contend that they have no claim to the trust assets. Furthermore, they complained about the violation of Art. 7 lit. c StAhiG, which is also rejected. Dismissal of the appeal of the complainants A.A. and B.A.
- Judgment of 06 July 2022 (2C_791/2021): Administrative assistance DTA CH-IN; The complainant A. has also raised the question whether the transmission of bank information is permissible if the accounts have been opened in the name of companies which are in turn held by an Irrevocable Discretionary Trust in which the person concerned by the request for administrative assistance is a beneficiary. It is not the task of the requested State to carry out an analysis of the trust structure and to determine the tax treatment of its income and assets. This would go beyond the scope of a plausibility check. The same applies to the question of how receipts and payments on a bank account indirectly held by a trust should be treated for tax purposes. In vain, the complainant objects that she has no claim to the trust assets. She further requested that the "Client Profiles" of three bank accounts be deleted from the documentation to be submitted. Again, a violation of Art. 7 lit. c StAhiG was asserted. Dismissal of the complaint of the complainant A.
- Judgment of December 17, 2021 (2C_950/2020) - intended for publication: Direct Federal Tax 2014; The legal question in dispute in this case was whether the book profit arising from the sale of a partial package of less than 10% in a target company entitled the taxpayer to a participation deduction if no partial package of at least 10% of these participation rights had ever been sold before. Specifically, at the beginning of the tax period in question here, the taxpayer held a participation of 10.86% in the target company and sold a partial package of 3.14% thereof in the tax period in dispute here. Taking into account the explanations in the dispatch, it follows that Art. 70 para. 4 lit. b half-sentence 2 DBG exclusively applies if the requirements of half-sentence 1 of this provision have previously been met. Since, with regard to the sale of a partial block of 3.14% of the shares of the Target Company, the requirement of the minimum sale quota of 10% pursuant to Art. 70 para. 4 lit. b half-sentence 1 DBG is not met, the resulting book profit does not entitle to the participation deduction. Dismissal of the taxpayer's appeal.
- Judgment of 23 June 2022 (2C_533/2021): Direct federal tax and state and municipal taxes 2018 (Zug); the complainant complains that the principle of equality of rights and the principle of taxation according to economic capacity would be impaired if he were not granted the requested deductions (maintenance contributions) and social deductions (child deductions). In particular, it is not acceptable that he has to pay a multiple of taxes for the year 2018 compared to the previous year solely due to the separation from his wife, although his economic capacity has not changed ("separation penalty"). The appeal proves to be unfounded. Dismissal of the taxpayer's appeal.
Non-occurrence:
Decisions are listed chronologically by publication date.
