Overview of tax law decisions of the Swiss Federal Supreme Court published between August 5 - September 11, 2022:
- Judgment of 4 August 2022 (2C_605/2021) - intended for publication: Tax Act of June 21, 1994; abstract review of norms regarding the revision of the law of June 1, 2021; The adopted regulation, which sets the upper limit of the taxable imputed rental value for property owners with taxable assets of less than CHF 500,000 (upon request) at 30% of their cash income, violates Art. 8 para. 1 and Art. 127 para. 2 BV as well as Art. 7 para. 1 StHG. The appeal is upheld and the contested amendment is repealed.
- Judgment of August 2, 2022 (2C_872/2021) - intended for publication: Criminal Tax Law; State and Municipal Taxes (Geneva) and Direct Federal Tax 2002-2010; With judgment 2C_333/2017 , H. AG was legally convicted of completed tax evasion pursuant to Art. 175 DBG in favor of A. due to hidden profit distributions (booking of excessive rental expenses due to construction vehicle rental). Criminal proceedings were also initiated against A., who was the administrative secretary of H. AG and owner of the sole proprietorship A., for aiding and abetting completed tax evasion. It is disputed whether the lower court was correct in affirming aiding and abetting and in imposing a fine. According to the new law, the criminal prosecution for the tax years 2008-2010 is not time-barred, as the orders were served on December 14, 2018, i.e. before the expiration of the 10-year period. The complainant A. disputes the fulfillment of the objective and subjective elements of the offense of aiding and abetting completed tax evasion. From an objective point of view, the accounts of H. Ltd. for the tax periods 2008 to 2010, as signed by the complainant in his capacity as administrative secretary, were tainted with irregularities. It is thus evident that the complainant causally contributed to the tax evasion of H. AG. With regard to the subjective elements, it appears that the complainant could neither have ignored the circumstance of the amounts overpaid by the sole proprietorship, nor the tax benefits of the deductions made by H. AG. At the very least, contingent intent is to be assumed. It follows that the aiding and abetting of tax evasion is given. It is clear from the wording of Art. 181 para. 3 DBG that the legislator clearly allowed the cumulation of penalties of legal entities and their organs, which also does not violate the principle ne bis in idem , since the AG and its organs are separate and independent tax subjects. The Federal Supreme Court confirmed the criminal liability for aiding and abetting tax evasion. Dismissal of the appeal of the complainant A.
- Judgment of 16 August 2022 (2C_723/2021): State and Municipal Taxes (Geneva) and Direct Federal Tax 2018; In essence, the lower court held that the Geneva Housing and Tenant Protection Act requires taxpayers, in this case owners of non-profit housing, to establish "reserves" for maintenance work. The amount of CHF 245,338 disclosed in the taxpayer's 2018 financial statements relates to a "reserve" for future risks or investments and, as such, is not deductible for tax purposes according to the lower court. The Federal Supreme Court considers the lower court's interpretation of cantonal law as not arbitrary. Also for the direct federal tax, it cannot be assumed that the reserve was required pursuant to Art. 960e para. 2 CO. Dismissal of the taxpayer's appeal.
Non-occurrence:
Decisions are listed chronologically by publication date.
