Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 30 September to 6 October 2019.

  • Judgement of 12 September 2019 (2C_418/2019): Withholding tax 2016 (Thurgau); The question arises whether the tax authorities can no longer reclaim the withholding tax retroactively from 1 January 2014 or only when it comes into force on 1 January 2019 under the conditions of Article 23 (2) VStG, even in the context of a refund decision based on a reduction order pursuant to Article 58 (1) VStG. Art. 23 (2) VStG also applies in this case on a transitional basis, since the claim to be assessed arose after 1 January 2014, Art. 23 (2) VStG in conjunction with Art. 70d of the VStG came into force during the pending appeal proceedings and the restitution has therefore not been legally assessed. Approval of the complainants' complaint.
  • Judgment of 17 September 2019 (2C_965/2018): Refund of withholding tax in 2013 (Ticino); the taxpayers were assessed on a discretionary basis after reminders and fines for breach of procedural obligations The discretionary assessment "crossed" with the tax return of the taxpayers who nevertheless submitted it. The tax return was accepted as an objection. A controversial issue was the reimbursement of withholding tax for a dividend due in 2013. The nVStG is only applicable to situations from 1 January 2014 and does not need to be examined here. The dividend was offset in the context of a discretionary assessment, forfeiting the reimbursement of withholding tax. Submitting a tax return practically at the same time as the discretionary assessment does not change this situation, as taxpayers have missed all the deadlines set for the proper declaration.
  • Ruling of 9 September 2019 (2C_187/2019): Direct federal tax and cantonal and communal tax 2014 (Valais), According to Art. 26 para. 1 lit. a DBG, which is still applicable for the 2014 tax period, the necessary costs for travel between the place of residence and the place of work may be deducted - without limitation, i.e. not to CHF 3,000 per tax period - as professional expenses. In the present case, the taxpayer cannot deduct the travel costs for the use of his private car because the daily time savings (less than one hour) are too small. Dismissal of the complainant's appeal.
  • Judgment of 19 September 2019 (2C_180/2018): direct federal tax and cantonal tax 2014 (Ticino). The taxpayer receives a pension from the Italian enclave of Campione d'Italia. In addition, he received a payment from the same municipality under the title "integrazione per differenza di cambio". Even if there is a certain causality of this ad hoc payment to the taxpayer's pension entitlement, it still does not qualify as a pension within the meaning of Art. 19 DBA-IT (nor as employment income within the meaning of Art. 15 DBA-IT). Accordingly, the payment is taxable in Switzerland.
  • Judgement of 19 September 2019 (2C_370/2019): Direct federal tax and cantonal and municipal taxes 2010 and 2011 (Valais); In the present case, the taxpayer did not make a self-denunciation with impunity, as the tax authorities had already made inquiries regarding the financing of the property; With regard to the amount of the fine, the tax authorities have a certain discretionary power, which was not violated in the present case despite the taxpayer's cooperation; dismissal of the taxpayer's complaint.
  • Judgment of 16 September 2019 (2C_74/2018): Withholding tax 2014; In November 2014, the Extraordinary General Meeting of C AG approved the distribution of a dividend from the net profit for 2014; the trustee of shareholders of C AG prepared the 2014 tax return of said shareholders based, inter alia, on the tax return of C AG. However, the tax return of C AG, which was already submitted in September 2014, did not include the dividend (which was only approved retroactively), which is why it was not included in the shareholders' tax return. The dividend was offset by the tax authorities. The refund of withholding tax on the dividend was disputed. This was granted by the Federal Court on the basis of Art. 23 para. 2 nVStG, which has since come into force. According to this provision, only a taxpayer who deliberately fails to declare the income and assets in question in his tax return or who deliberately does not declare them at all forfeits his right to a refund.
  • Judgment of 19 September 2019 (2C_1096/2018): Value added tax (VAT) 2010 and 2011; question whether certain transactions are excluded as financial transactions pursuant to Art. 21(1)(19)(a)-(e) VAT Act Approval of the complaint and rejection of the appeal to the BVGer, as in the meantime BGer 2C_943/2017 of 17 July 2019 has been published, according to which the activity as a financial intermediary is not limited to direct representation of the office.
  • Judgement of 16 September 2019 (2C_328/2019): Cantonal and municipal taxes 2010 (Geneva); The application of the so-called practitioner method according to KS 28 SSK ((1x net asset value + 2x capitalised earnings value)/3) for the estimation of unlisted securities in the context of wealth tax (Art. 14 StHG) is not arbitrary, because the StHG gives the cantons leeway. The complainants have not been able to show that there is an exception within the meaning of CC 28 (in casu liquidation) which would justify a deviation from the practical method. Dismissal of the appellants' appeal.
  • Judgment of 16 September 2019 (2C_347/2019): Direct federal tax and cantonal and municipal taxes 2005-2007 (Berne); In summary, with the lack of written agreements, the lack of collateral despite the difficult financial situation of the borrowers, the poor financial situation of the lenders, the lack of coverage by the corporate purpose and the lack of interest and amortisation payments, there is sufficient evidence to conclude that the repayment of the loans was not or is not seriously intended. The complainants do not put forward any evidence that, despite the above-mentioned indications, the granting of the loan is justified on business grounds or even appears to be reasonably plausible. The previous instance was right to classify the loans as simulated. The offsetting with regard to the complainants is therefore not objectionable. Dismissal of the appellants' appeal.

Non-occurrence decisions / inadmissible complaints:

Decisions are listed chronologically by publication date.

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