Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 22 - 28 January 2018.
- Judgment of 10 January 2018 (2C_604/2017): User fee for the use of public land; municipal autonomy (Grisons); the amount assessed in the present case pursuant to Art. 76 BauG/Gem.GR is a user fee for the use of public land according to this provision; pursuant to Art. 76 para. 1 sentence 1 BauG/Gem.GR, a charge is levied for the regular use of public land by parking cars; according to the designation in the marginal note, it is therefore a user charge and thus a causal levy; as such, it presupposes an individually attributable special service of the community and can only be levied if this service was actually used; therefore, for the levying of the charge, the municipality must specifically demonstrate that the landowner concerned has actually used the public land for parking cars to the assumed extent of the lack of parking spaces; the competence norms for the levying of further taxes by the municipalities in Art. 2 paragraph 3 and Art. 21 et seq. GKStG/GR do not contain any explicit delegation for the levying of a cost allocation tax for the increased use of public land; dismissal of the complaint.
- Judgment of 1 December 2017 (2C_583/2016): Real Estate Transfer Tax (Solothurn); it was disputed whether the complainant (SBB) could invoke a tax exemption in connection with the purchase of a property; § 209.1 StG/SO, which regulates the subjective exemptions from the tax liability for the Real Estate Transfer Tax, refers in this respect to § 90.1 StG/SO; the wording and the system are clear in that § 209.1 StG/SO expressly refers only to § 90.1 lit. a, b, c f, i, i bis and k StG/SO, but not to § 90(1)(d) StG/SO, which provides for exemption from direct taxes for transport and infrastructure undertakings licensed by the Federal Government; in the absence of a reference to § 90(1)(d) StG/SO, transport and infrastructure undertakings licensed by the Federal Government are not exempted from the property transfer tax according to the clear wording of § 209(1) StG/SO; dismissal of the complaint.
- Judgment of 11 January 2018 (2C_392/2017): Direkte Bundessteuer und Kantons- und Gemeindesteuern 2004 (Bern); the present appeal decision, which was served on 24 November 2014, was due to expire on 10 January 2018. In addition, the objection decision was also defective with regard to the printed deadline for the appeal period; since various inconsistencies arose from the objection decision in the present case (tension between the printed end of the appeal period and the instructions on appeal), the representative of the complainants could not rule out the possibility that the objection decision suffered from a defect with regard to the printed end of the appeal period; in this situation, he could not simply rely on the printed date of the end of the appeal period; it would have been up to him to clarify the reasons for the obvious inconsistencies regarding the appeal period; dismissal of the appeal.
- Judgment of 16 January 2018 (2F_1/2018): Direct Federal Tax and State and Municipal Taxes 2006 and 2007 (Berne); the taxpayer objects to two appeals decisions of the Tax Administration of the Canton of Berne, in which the Tax Administration of the Canton of Berne denied the conditions for appeal or correction; appeals against such decisions may be lodged with the (first) cantonal appeals authority (i.c. Cantonal Tax Appeal Commission); lack of jurisdiction of the Federal Supreme Court; forwarding of the submission to the presumably competent cantonal authority.
- Judgment of 1 December 2018 (2C_469/2017): Real estate transfer tax (Solothurn); in the present case, the requirements of § 207, Subsection 1, Letter g StG/SO in conjunction with § Section 63bis (3) VV StG/SO, in particular with regard to the aspect of at least one year of owner-occupancy; the period between the acquisition and the sale of the property was less than one year in the present case, whereby the calculation is to be based on the time of the respective commitment transaction; dismissal of the complaint.
Decisions are listed chronologically by publication date.
