Overview of the tax rulings of the Swiss Federal Supreme Court published between January 15 - 21, 2024:
- Judgments of December 15, 2023(9C_716/2022 - for publication and 9C_717/2022): Import duties, 2011 levy period; The two judgments concern the failure to declare customs duties when importing vehicles and a customs and tax reduction that occurred, whereby it had to be assessed whether the duty claims in the two cases were time-barred. According to Art. 75 para. 1 ZG, customs debts become time-barred five years after the end of the calendar year in which they fall due. This relative limitation period also applies to the import tax debt by virtue of the reference in Art. 56 para. 4 MWSTG. Unlike customs and import tax debt, automobile tax debt is subject to a relative limitation period of ten years (Art. 20 para. 1 AStG). This period is interrupted by, among other things, any official action by which the tax claim is asserted against the taxable person (Art. 20 para. 2 lit. b AStG), whereby the period begins to run anew (Art. 20 para. 3 AStG). In the present cases, the absolute limitation period of 15 years would not expire until the end of 2026 (Art. 20 para. 4 AStG). It should be noted that the opening of the ruling by the BAZG or the customs office or customs district directorate (see Art. 116 ZG) on the obligation to make subsequent payment in the case of import tax offenses pursuant to Art. 105 para. 3 lit. b MWSTG results in the claim becoming time-barred if it is made before the expiry of the limitation period pursuant to Art. 105 para. 1 MWSTG. In both cases, the subsequent payment order was issued before the expiry of this period, which is why the claim for subsequent payment of import tax is also not time-barred. The appeals of the taxable persons are dismissed.
- Judgment of December 20, 2023 (9C_542/2023): Direct federal tax 2009; in dispute is whether the capital payment from 2009 is to be recorded with the ordinary assessment or a special assessment in accordance with Art. 38 para. 1 DBG and which canton is entitled to levy the tax. In its leading ruling of May 24, 2016(BGE 142 II 182), the Federal Supreme Court stated that, in accordance with Art. 216 para. 1 DBG 1990, the canton in whose territory the taxpayer's place of residence was located at the end of the tax year is responsible for the assessment in the period relevant here (tax year 2009). Furthermore, in the first instance of the present dispute concerning cantonal and municipal taxes(ruling 2C_204/2016 dated December 9, 2016), the Federal Supreme Court determined that there is no reason for a cash payment due to the lack of self-employment and that the capital payment is therefore taxable together with the other income. Lump-sum payments without a reason for cash payment in accordance with Art. 5 FZG are taxed together with ordinary income. Dismissal of the taxpayer's appeal.
- Judgment of December 20, 2023 (9C_263/2023): Cantonal and communal taxes and direct federal tax 2018 (Vaud); self-employment; business assets; at issue was whether the transfer of building rights from a parcel of land belonging to the taxable spouse to a neighboring parcel constituted income from self-employment and whether it was subject to income tax (excluding real estate gains tax). In particular, the lower court had established that the taxable spouse, although employed 100% as a teacher, had a secondary occupation in viticulture for which he had declared profits or losses in the last tax periods, that the taxpayers cultivated more than 6,000 m2 of vineyards and that they had purchased the parcel in question specifically for this purpose. Next, the taxpayers had acquired a stake in D. SA, whose aim was to exploit the grape harvest of its members. These elements allowed the lower court to arbitrarily conclude that the taxpayers were engaged in a self-employed (secondary) gainful activity. The gratuitous transfer of use of the plot of land and the use of the property for the husband's self-employment meant that the property, which originally belonged to the wife's private assets, was transferred to her business assets, as the spouses formed an economic unit. Accordingly, the transfer of the building rights is to be qualified as income from self-employment. Contrary to the taxpayers' assertions, they did not receive any information to the contrary that would have protected their trust. Dismissal of the taxpayers' appeal.
- Judgment of January 4, 2024 (9C_589/2023): State and municipal taxes and direct federal tax 2021 (Valais); The lower court rightly did not accept the taxpayer's appeal as it did not meet the requirements of Art. 140 para. 2 DBG or Art. 150a para. 2 and 151 para. 1 StG/VS. Dismissal of the taxpayer's appeal.
- Judgment of January 9, 2024 (9C_648/2022 - for publication): Military service tax 2019; A. was naturalized in 2017 at the age of 29. The increased age limit in Art. 3 para. 1 WPEG in 2019 refers to the age of the conscript in the respective year. For this reason, the levying of the military service tax in 2019 does not violate the prohibition of retroactivity. As the liable person did not register for voluntary recruitment, there is also no discrimination within the meaning of Art. 8 and 14 ECHR and Art. 8 BV. Dismissal of the taxpayer's complaint.
Decisions on non-admission and write-offs:
Decisions are listed chronologically by publication date.
