Overview of tax law decisions of the Swiss Federal Supreme Court published between October 23 - 29, 2023:
- Judgment of September 19, 2023 (9C_266/2023) intended for publication: Connection fees of the municipality of Aigle/VD; The municipality served the complainant with two assessment notices for the connection fee of drinking water and wastewater, against which the complainant filed an appeal. The communal appeal commission informed that it would consult a lawyer for this case. The taxpayer filed a request for recusal against the lawyer. Furthermore, she claims a violation of the right to be heard. The Municipal Appeals Commission cannot be regarded as a court within the meaning of Art. 30 para. 1 of the Federal Constitution. It does exercise a judicial function, but as an administrative authority, since it is supposed to make decisions based on public law. The claim of violation of Art. 30 para. 1 BV is unfounded, since only the requirements of Art. 29 BV are applicable to the respondent. The communal appeal commission has to observe the general procedural guarantees according to Art. 29 para. 1 BV. The respondent is entitled to use the services of an external legal representative. Since this representative has no decision-making authority and his authority does not exceed that of a consultant, there is no violation of the guarantees of Art. 29 para. 1 BV. Dismissal of the taxpayer's appeal.
- Judgment of October 03, 2023 (9C_233/2023) - intended for publication: Direct Federal Tax 2018; In dispute and to be examined is whether the husband is to be considered insolvent. According to the general formula found in previous case law, insolvency within the meaning of Article 13(1) sentence 2 DBG exists if the spouse in question does not have sufficient funds to pay the taxes due for an indefinite period of time. In its case law, the Federal Supreme Court has usually affirmed the inability to pay if definitive loss certificates within the meaning of Art. 115 para. 1 SchKG exist for the taxes of the relevant tax period. According to the findings of the lower court, there are no debt collection proceedings or loss certificates against the husband and he is not involved in any bankruptcy proceedings or in any composition agreement with assignment of assets. According to the wording, the legal consequence (discontinuation of the joint and several liability of one spouse) depends on the other spouse being insolvent. In this respect, the wording is not clear by itself; it must be concluded otherwise. A look at the material shows that the Federal Council and the Councils were of the opinion that the legal concept of insolvency was, to a certain extent, self-explanatory. The systematic element of interpretation allows for a gain in knowledge. From a business point of view, insolvency exists if, on the one hand, a company no longer has any liquid funds or cannot procure such funds in the short term by taking out a loan and, on the other hand, no longer holds any valuable movable or immovable assets that are not necessary for its operations and that could be sold in the short term. The purpose of Art. 13 para. 1 sentence 2 DBG is to preserve the assets of the spouse who continues to be solvent in the case of a legally and factually inseparable marriage. In summary, insolvency within the meaning of Art. 13(1) sentence 2 DBG exists if the spouse in a legally and factually unseparated marriage does not have any attachable income at least in the medium term and at the same time does not have any silverable assets. The standard calls for a comprehensive examination of the income and asset situation, whereby an overall assessment must be made. Against this background, the wife cannot convincingly argue that the husband is insolvent. The husband earns attachable income and has his own assets. It is also of no legal significance how the tax factors are distributed between the two persons or how high the respective share of the total tax is. Dismissal of the taxpayer's appeal.
- Judgment of October 10, 2023 (9C_708/2022): Cantonal and communal taxes 2017 (Valais); The present ruling was issued as a consequence of the Federal Supreme Court ruling 2C_461/2021 of January 19, 2022 (see our article of February 6, 2022) in which the taxpayer was deprived of the status of a holding company for the tax period 2017. In implementation of this ruling, the taxpayer's participations were revalued to fair market value as of January 1, 2017. Due to the lack of reasons given by the lower court for the revaluation, the tax authority considered its right to be heard to have been violated. Since the contested decision did not contain an explanation of the reasons for applying a revaluation of the securities at fair market value, nor of the legal basis for such a solution, the Federal Supreme Court considered a violation of the right to be heard to be fulfilled due to the lack of reasons for the judicial decision. Thus, the Federal Supreme Court did not have to deal with the legality of such a revaluation. Approval of the appeal of the tax authority.
Decisions are listed chronologically by publication date.