Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 5 to 11 August 2019.
- Addendum: Judgment of 3 July 2019 (1B_71/2019), official publication scheduled: Administrative criminal law; unsealing; examination of the credibility of an overriding interest in establishing the truth for the unsealing of the seized papers and documents on suspicion of withholding tax evasion within the meaning of Art. 61 lit. a VStG for the years 2011 to 2015; if professional secrecy is proven in accordance with Art. 50 para. 2 VStrR, the sealing authority itself carries out an initial examination of the documents in order to exclude those which are not relevant to the investigation; it then removes the documents covered by professional secrecy and takes the necessary measures to protect the confidentiality of third parties with regard to the documents handed over to the investigators (BGE 143 IV 462 E. 2.1, p. 466); the professional secrecy of the auditors - the violation of which is punishable under Art. 321 SCC - is not mentioned in Art. 50 para. 2 VStrR. Insofar as the VStrR does not conclusively regulate individual issues, the provisions of the Code of Criminal Procedure are generally applicable by analogy (BGE 139 IV 246 E. 1.2, p. 248). Based on a historical interpretation, the Federal Supreme Court concludes that the professional secrecy of auditors is not protected by Art. 171 of the Code of Criminal Procedure, but that they are to be regarded as holders of other legally protected secrets within the meaning of Art. 173 (2) sentence 1 of the Code of Criminal Procedure (E. 3.3). These persons are in principle obliged to give evidence and can only be exempted from the obligation to give evidence if they can credibly demonstrate that the interest in secrecy outweighs the interest in finding the truth; the complainant was unable to credibly demonstrate the predominant interest in secrecy in the present case (E. 3.5); the complaint is dismissed.
- Judgment of 3 July 2019 (2C_306/2017), official publication provided: Lump-sum tax credit (Zurich); tax year 2011; controversial issue was whether the reduction of the lump-sum tax credit by two thirds by the tax authorities, as provided for in the credit ordinance, leads to legal double taxation if the licence income received by the complaining taxpayers is exclusively recorded with direct federal tax due to their holding status. The Federal Supreme Court considers: "The mere pro rata relief from withholding tax on royalties has the consequence for the complainant that her cross-national tax burden on these earnings approaches the tax burden that she would have to bear without holding status on comparable domestic capital earnings. However, if there are international doubts about the competitive neutrality of the holding status anyway, it is difficult to say that the reduction of the relief would impair competitive neutrality. This reduction may well result in international legal double taxation. However, as long as the total tax burden on the licence fees subject to withholding tax does not exceed the tax burden which would have resulted if all three communities had taxed them, international legal double taxation in the present case does not run counter to the overriding aim of the DTAs" (E. 4.7.2.3.); the taxpayers' complaint is rejected.
- Judgment of 16 July 2019 (2C_207/2019): Direct federal, cantonal and communal taxes 2010-2012 (Geneva); tax evasion; the conditions for hidden profit distribution are met; the credit card statements of the shareholders' father were paid by the company from 2010 to 2012 without corresponding consideration; this is not disputed by the complainant either (E. 4.3 et seq.); dismissal of the complaint
- Judgment of 23 July 2019 (2C_396/2018): Abstract control of standards; Törbel visitor's tax regulations; the complaint concerning the determination of the average occupancy rate by the municipality of Törb and the bed factor proves to be unfounded and is dismissed.
Non-occurrence decisions / inadmissible complaints:
- Judgment of 11 July 2019 (2C_873/2018): Cantonal and communal taxes 2014 (Geneva); the appeal is dismissed
- Judgment of 18 July 2019 (2C_424/2019): Direct federal tax and cantonal and communal taxes 2005 - 2006 (St. Gallen); the appeal is not upheld
- Judgment of 23 July 2019 (2F_18/2019): Appeal against the judgment of the Swiss Federal Supreme Court of 19 November 2018 (2C_944/2018); the appeal is not upheld.
Decisions are listed chronologically by publication date.
