Overview of the tax law decisions of the Swiss Federal Supreme Court published in the weeks from 10 - 23 August 2020.
- Judgement of 9 July 2020 (2C_187/2020): State and municipal taxes 2016 (Zurich); it is disputed whether the pro rata temporis method (so-called weighting method) to be applied in the intercantonal relationship is also applicable in the international relationship for wealth tax between the canton of residence and the canton of real estate. The StHG does not contain any regulation in this respect; the cantons therefore have a certain amount of leeway in this respect and the Federal Supreme Court's decision is limited to arbitrariness. The interpretation of the StG ZH by the lower court, with the result that the weighting method is also applied to international cases from a legal system perspective, is not arbitrary. Dismissal of the taxpayers' appeal.
- Sentence of 17. July 2020 (2C_461/2020): Direct Federal Tax and State and Municipal Taxes 2012, 2013 and 2015 (Appenzell Innerrhoden); Set-off of monetary benefits at the level of the shareholder; in a two-dimensional relationship, the existence and amount of a monetary benefit claimed by the assessment authority must be disputed in detail; If the shareholder fails to do so or if the shareholder limits himself to making general statements, the assessment authority may generally assume in the assessment procedure that the set-off, which has been legally assessed at company level, is equally justified in relation to the shareholder; rejection of the taxpayer's complaint.
- Judgement of 17 July 2020 (2C_462/2020): Direct federal tax 2011 and 2012; the taxpayer had been assessed according to the principles of due diligence, as he had not submitted any tax returns despite reminders; the assessment decrees for the two tax periods became legally binding; subsequently, the KSTV/AI informed the taxpayer that, based on reports from the canton of SG, it had learned that the taxpayer had been assessed in the canton of St. Gallen in the tax periods 2011 and 2012. The complainant has not submitted any plausible justification or evidence that could show the substantive incorrectness of the set-off; even if only a set-off (outside of a dutiful discretionary assessment) existed, the taxpayer would have had to dispute the existence and amount of the set-off in detail; dismissal of the complaint by the taxpayer.
- Judgment of 10 July 2020 (2C_245/2020): VOC levy (reimbursement, failure to observe a time limit); the Federal Customs Administration claimed a VOC levy (VOC = Volatile organic compounds) from the appellant; the appellant appealed to the BVGer against this claim; the BVGer claimed an advance on costs, which was to be paid until 8 July 2020. Since the complainant had not paid the advance on time, the Federal Administrative Court did not consider the appeal on 13 February 2020, as it had threatened to do so; the complainant submitted to the Federal Administrative Court an accounting voucher stating that on 30 December 2019 it had given the order to pay the advance on costs in favour of the Federal Administrative Court, as well as a debit note from the bank dated 31 December 2019. December 2019, according to which the amount was debited from her account in favour of the SNB with a value date of 30 December 2019 (stating the relevant invoice number); since, pursuant to Art. 21 para. 3 VwVG, it is not the crediting to the recipient but the debiting of the bank account of the payer that is decisive, the advance on costs would thus in principle have been paid in time; the complainant submits that after receiving the decision of non-appearance, she had established that the advance on costs had been returned to her account for reasons that were obviously not ascertainable; it is questionable whether this can lead to a situation in which the payment, which is in principle on time, is to be regarded as not having been made and whether, if necessary, a new payment deadline would have to be set; acceptance of the complainant's appeal and rejection to the lower instance.
- Judgment of 13 July 2020 (2C_609/2019): Lump-sum tax credit 2015 (Basel); the dispute is whether only the cantonal tax on German dividends should be taken into account when determining the maximum amount, or also the cantonal tax on the pension capital benefit drawn by the complainant. In calculating the maximum amount of the credit, those earnings are taken into account on which taxes have been levied in the contracting states in accordance with the applicable DBA, because this corresponds exactly to the meaning of the maximum amount. The lump-sum tax credit should not lead to a reduction in the Swiss tax base from a source accrued in Switzerland (i.c. tax base of lump-sum pension benefits). Rejection of the taxpayer's complaint.
- Judgment of 24 July 2020 (2C_547/2019): Cantonal taxes and direct federal taxes 2016 (Ticino); A.A. was a partner in the limited partnership C. (company 1) with its registered office in the canton of Bern. He then founded the limited partnership D. (company 2), contributing his shares to company 1. In the course of a partial liquidation of company 1, A.A. withdrew its Bernese real estate and transferred it to company 2. The existence of a basically tax-neutral restructuring was no longer disputed. However, it was disputed whether the fact that A.A. had received a (tangible) value, i.e. open and hidden reserves, in the partial liquidation of company 1 which corresponded to its participation quota, but the hidden reserves were below its participation quota, led to taxation of the hidden reserves "shifted" to the other shareholders. This was denied by the Federal Supreme Court; in the present case, an overall view is decisive, irrespective of the partner with whom the hidden reserves are located (and at any one time taxed); no payment or similar in cash was made. Accordingly, no hidden reserves were realized. Partial approval (concerning direct federal tax) of the taxpayers' complaint.
Decisions are listed chronologically by publication date.
