Overview of tax law decisions of the Swiss Federal Supreme Court published between September 25 - October 1, 2023:
- Judgment of August 28, 2023 (9C_637/2022): Direct Federal Tax and State and Municipal Taxes (Zurich) 2007-2009; After-tax and fine proceedings; In dispute is whether the income from the family foundation is taxable under Art. 16 para. 1 DBG. The VGer has taken the position that the donations of the family foundation do not fall under the list of exceptions of Art. 24 DBG due to the lack of intention to make a donation. The taxpayers, on the other hand, are of the opinion that the will to make a donation is evident from the foundation deed. If the services rendered are not provided voluntarily but in fulfillment of a legal obligation, there is no intention to make a gift. Precisely because the foundation has its own legal personality, it is solely the relationship existing between it and the beneficiaries and not the relationship existing between the founder and the beneficiaries that is to be taken into account. Partial approval of the taxpayer's appeal regarding the tax period 2007 due to the statute of limitations and dismissal regarding the tax periods 2008-2009.
- Judgement ofSeptember 7, 2023 (9C_610/2022): Emissions levy, levy period 2015; The issue at dispute and to be examined was whether the person liable for the levy could claim the exemption amount under emissions levy law within the meaning of Art. 6 para. 1 lit. k StG in the version of 23 March 2007, in force since 1 January 2009, this in particular under the aspect of the "elimination" of pre-existing losses. So far, there has been no in-depth federal court case law on this issue. The legislator links the tax allowance within the meaning of Art. 6 para. 1 lit. k StG in particular to the fact that "existing losses are eliminated". After a detailed examination, the Federal Supreme Court comes to the conclusion that Art. 6 para. 1 lit. k StG requires - in addition to the two elements that are not in dispute here (reorganization, payment of a maximum of ten million Swiss francs) - in accounting terms the actual derecognition of the loss carryforward. From a temporal point of view, this has to happen at the time when the restructuring measure is to be booked. This is obviously missing in the present case: The taxpayer credited the premium to the capital contribution reserves and consequently failed to derecognize the loss carried forward in due time. It did so only later, which meant that it could not (any longer) meet the legal requirements. It must be held liable for this, which is why it has forfeited the claim to the exemption from the issue tax. The appeal by the FTA thus proves to be well-founded and is upheld.
- Judgment of 07 September 2023 (9C_691/2022): Value added tax 2012-2013; in dispute is whether the right to assess the tax claim is time-barred. With regard to the 2012 tax period, the absolute statute of limitations for assessment pursuant to Art. 42 para. 6 VAT Act occurred on January 1, 2023. Regarding the tax period 2013, the limitation period was interrupted with the control notice of November 5, 2014. On August 17, 2016, a criminal investigation was opened against an organ of the complainant and the notification to it was made on October 14, 2016. This has led to the suspension of the statute of limitations pursuant to Art. 42 para. 4 VAT Act. The taxpayer argues that the FTA did not terminate the criminal proceedings for reasons contrary to good faith and that it therefore cannot invoke the standstill. The Federal Supreme Court holds that the tax (judicial) authorities only have to ascertain in the assessment proceedings whether criminal tax proceedings have been conducted for the relevant tax period and whether this has been communicated to the person liable to pay. They do not have to verify whether the criminal tax proceedings were conducted in accordance with the principle of good faith, presumption of innocence, acceleration requirement and other procedural guarantees. Corresponding deficiencies are to be raised exclusively in the criminal proceedings. The criminal proceedings were discontinued on November 9, 2021. Consequently, the relative statute of limitations for assessment was at a standstill from October 14, 2016, to November 9, 2021, and began to run anew as a result of various interrupting acts. It has not occurred to date. Dismissal of the taxpayer's appeal.
Decisions not to enter
Decisions are listed chronologically by publication date.
