Overview of tax law decisions of the Swiss Federal Supreme Court published between September 26 - October 2, 2022:
- Judgment of September 13, 2022 (2C_359/2022): Refund of withholding tax; A. AG and B. AG are both active in the real estate sector. B. AG was held by a Canadian citizen from Iraq residing in London through a Liechtenstein company C.. A. AG acquired B. AG on December 4, 2013 by way of a share purchase agreement and additionally undertook to assume the debts of the selling shareholder towards B. AG. On the same day, A. AG sold the property held by B. AG to the D. Foundation. At its ordinary general meeting, B. AG decided to pay a dividend of CHF 9.97 million to A. AG. It is disputed whether there is a claim for refund of the withholding tax. The FAC took the position that a tax evasion according to Art. 21 para. 2 withholding tax law exists. The de facto liquidation took place on the same day as the acquisition of the company. This is unusual and not appropriate for the purpose. B. AG was acquired at a price lower than its actual value. Since there are no reasons, apart from tax saving reasons, for the procedure of the purchase price determined by the parties involved, it must be assumed that the legal form chosen was only improperly chosen in order to save taxes. The proper procedure would have consisted in the fact that A. AG would have purchased the property and B. AG would have been liquidated by its shareholder domiciled in London. The distribution of the liquidation surplus would have meant a definitive withholding tax burden of at least 15% for the selling shareholder pursuant to Art. 10 No. 2 lit. b DBA CH-GB. If the procedure as chosen here were accepted, the selling shareholder would not have to pay withholding tax and A. AG would be entitled to a refund of the withholding tax paid. Also from Art. 16 para. 2bis VStG, A. AG cannot derive anything in its favor from Art. 16 para. 2bis VStG either, as the requirements for the notification procedure pursuant to Art. 20 VStG or Art. 24 para. 2 VStV are not met. Dismissal of the appeal of A. AG.
- Judgment of September 1, 2022 (2C_574/2021): Direct Federal Tax and State and Municipal Taxes 2015 (Bern); The dispute in the present case was whether the taxpayer could deduct the costs borne by her in connection with the payment of the current subjects from an interest swap entered into by her (CHF89,147) and its termination (CHF 1,492,000) as private debt interest. Due to the lack of a sufficient connection to a capital debt, the two payments cannot be deducted for tax purposes as debt interest pursuant to Art. 33 para. 1 lit. a DBG and Art. 9 para. 2 lit. a StHG in connection with Art. 38 para. 1 lit. a StHG. Art. 38 para. 1 lit. a StG/BE. The present LIBOR mortgage and the interest rate swap are legally independent agreements. Dismissal of the taxpayer's appeal.
Decisions are listed chronologically by publication date.