Overview of tax law decisions of the Swiss Federal Supreme Court published between October 2 - 8, 2023:
- Judgment of August 28, 2023 (9C_700/2022): Direct Federal Tax and State and Municipal Taxes (Nidwalden) 2016; In dispute is whether the ordinary shares in B. GmbH newly qualify as shares of business assets for the tax period 2016 or still constitute private assets. The decisive criterion is the current technical-economic function of the asset in question. According to settled case law of the Federal Supreme Court, a shareholding is to be allocated to business assets if it is wholly or predominantly "closely related" to the self-employed activity of the owner of the shareholding. In order to qualify these ordinary shares as belonging to the business assets for 2016, according to the case law, after such a long period of contrary qualification, significantly changed circumstances are required. The only element of change mentioned by the Administrative Court is that the complainants had planned to transfer the shares held by them to the son in the near future. Under the given circumstances, the assessment made proves to be contrary to federal law. Approval of the taxpayers' appeal and referral back to the Nidwalden tax office for reassessment.
- Judgments of September 5, 2023(9C_632/2022 and 9C_712/2022): Direct Federal Tax and Cantonal and Municipal Taxes 2015 (Ticino); also the transfer to a legal entity indirectly held to at least 50% can fulfill the facts of transposition. In addition, the cooperation of parties involved to reach the participation threshold is affirmed in the present case. Dismissal of the taxpayer's appeal.
- Judgments of 4 September 2023( 9C_16/2023, 9C_17/2023 and 9C_18/2023): Import duties, duty period 2016-2017; In January 2017, a vehicle was stopped by the border guard and subjected to a customs inspection. During the inspection, the border guard discovered 507.8 kg of food products imported from Italy and not declared under customs law. The FCA initiated a customs criminal investigation. This led to the finding that the complainant had imported 30,905.10 kg of cheese and meat products from Italy into Switzerland between 1 January 2016 and 24 January 2017 without a customs declaration and without paying import tax. The complainant essentially complains that it was not sufficiently proven that the products it received as part of the disputed deliveries had not been properly cleared through customs. There had also been duty-paid products. It was unclear how the lower court had excluded these duty-paid products. According to the Federal Supreme Court, it could be verified on the basis of the invoices whether the products supplied had been properly cleared through customs. Dismissal of the appeal.
- Judgment of 5 September 2023 (2C_487/2022): Direct Federal Tax and State and Municipal Taxes (Valais) 2017; Self-employment; A provision for AHV contributions must be taken into account if the taxable profit has been corrected by the tax authorities (recognition of a real estate gain as self-employment income). A taxation of the real estate gain for both the real estate gain tax and the cantonal and communal taxes is not permitted. Partial approval of the appeal of the tax administration.
- Judgment of September 4, 2023 (9C_264/2023): Cantonal and communal taxes 2018 and 2019 (Valais); The conclusion of the lower court according to which the taxpayer has a time saving of more than one hour for the commute to work by car compared to public transport and the corresponding travel expenses are deductible is not arbitrary. Dismissal of the appeal of the tax administration.
Decisions not to enter
Decisions are listed chronologically by publication date.
