Overview of tax law decisions of the Swiss Federal Supreme Court published between January 16 - 22, 2023:
- Judgment of December 7, 2022 (2C_412/2022): Additional payment from gratuitous litigation: The district court demanded the additional payment of the costs for gratuitous litigation from previous proceedings due to improved economic circumstances. The taxpayer could not convincingly demonstrate that his economic circumstances had not improved, contrary to the declaration in the tax return. There was also no statute of limitations. Dismissal of the appeal.
- Judgment of December 12, 2022 (2C_533/2022): Sewer connection fee of the municipality of S./BE, levy period 2019; The fee payer objected to the amount of the sewer connection fee charged to him in connection with the construction of a property. The complaints of non-compliance with the principle of equivalence and the polluter pays principle as well as the violation of the principle of equality of rights are unfounded. Dismissal of the complaint of the fee payer.
- Judgment of 07 December 2022 (2C_111/2022): Direct Federal Tax and Cantonal and Municipal Taxes 2018 (Geneva); Property in Italy, imputed rental value and maintenance costs; In dispute is whether the maintenance costs for the two properties in Italy are deductible. Article 21(1) DBG provides that the imputed rental value is determined taking into account the local circumstances and the actual use of the dwelling. In principle, the imputed rental value is determined according to an individual appraisal procedure or on the basis of cantonal appraisals, if these exist. The Cantonal Tax Administration of Geneva estimates the imputed rental value of a property located in a country that does not have imputed rental value taxation at 4.5% of the taxable value of the property. The rate of 4.5% already takes into account a flat-rate deduction of 25% of the gross rental value for maintenance costs, which therefore cannot be deducted additionally. According to case law, the application of the lump-sum method is permissible if the rental value determined according to the rules of the state in which the property is located is not sufficient to meet the legal requirements in Switzerland. Italy does know an imputed rental value for second homes, but the complainants did not provide an exact value. The procedure of the Geneva tax administration is not objectionable. Dismissal of the taxpayers' appeal.
- Judgment of December 13, 2022 (2C_547/2022): Household tax pursuant to RTVG; The taxpayer, who lives alone ("single"), argued before the Federal Supreme Court that the household tax is unconstitutional and contrary to the Convention (Art. 8 BV; Art. 8 and 10 in conjunction with Art. 14 ECHR). The Federal Supreme Court is of the opinion that the link to the household does not violate the prohibition of discrimination (Art. 8 para. 2 BV). Because there are good reasons for this schematization (levy per household) (collection efficiency, uniformity, simple and unbureaucratic solution, etc.), the person liable for the levy cannot derive anything for himself from the principle of equal treatment and the principle of economic capacity. Furthermore, the household tax is not contrary to the Convention (e.g. discriminatory with regard to the way of life), since it is not linked to the status of "single" but to the household. Finally, a person living in a relationship can also live alone in a household. Also, a person who is not in a relationship can live in a household with several persons. Dismissal of the complaint of the taxpayer.
- Judgment of December 6, 2022 (2C_265/2022): State and municipal tax of the Canton of Aargau 2016, imputed rental value; Insofar as imputed rental value is based on the adjustment decree of the government council, an individual estimate of incorrectness can be requested and the rental value can be adjusted in case of obvious incorrectness. This procedure does not violate the guarantee of legal recourse. Dismissal of the appeal (also against further alleged violations of fundamental rights such as right to be heard, principle of good faith, prohibition of legal delay, etc.).
Decisions on non-admission and write-offs:
- Judgment of December 29, 2022 (2C_1000/2021): State and municipal taxes of the Canton of Zurich 2008-2009 and direct federal tax; In the case of a so-called zero assessment, there is usually no interest in legal protection, which only exists if the facts to be clarified have direct legal effects on other taxes and the clarification cannot be delayed. Dismissal of the appeal.
- Judgment of 29 December 2022 (2C_999/2021): Real estate gains tax (intercantonal double taxation); General references to possible connections between booked own contributions of the sole proprietorship, losses outside the canton and incomplete recognition of these own contributions as investment costs for real estate gains tax do not satisfy the qualified duty to give notice of defects. Dismissal of the appeal.
Decisions are listed chronologically by publication date.