Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 8 - 14 November 2021.
- Ruling of 6 October 2021 (2C_24/2021): State and municipal taxes 2015 (Basel-City); intercantonal double taxation; The dispute in this case was whether A. GmbH has its registered office in the Canton of Basel-Country, where its registered office is located according to the commercial register, or in the Canton of Basel-City. The Basel-Stadt Court of Appeal considered that although A. GmbH had a lease for premises in the Canton of Basel-Landschaft, it had been established on the occasion of an audit in 2017 that there was neither a letterbox nor a bell box at this address. However, this can at most be considered as circumstantial evidence. However, there are other indications that speak for an actual administration in the canton of Basel-Stadt. The rent is so low that it cannot be assumed that the property was actually rented. Additional inconsistencies in the files would also speak against it. The rental agreement submitted has a rental start date of 01 August 2011, although the registered office was only moved there on 27 August 2012. Furthermore, the annual rent for the premises in question differs significantly from the rental expense shown in the accounts for the 2015 tax period. In terms of amount, the recorded rental expense corresponds more to the private residential expenses of the sole managing director D. Finally, D. also had expenses alone in the canton of Basel-Stadt. Dismissal of the appeal of the taxpayer A. GmbH.
- Ruling of 6 October 2021 (2C_952/2020): State and municipal taxes (Basel-Landschaft) and direct federal tax 2016; separate taxation of spouses. In the present case, the financial separation cannot be proven. Therefore, although the couple has different main residences in the cantons of BL and SO, they are assessed jointly at the married tax rate (with intercantonal tax differentiation). Appeal partially upheld.
- Judgment of 19 October 2021 (2C_629/2021): State and municipal taxes (Zurich) and direct federal tax 2005-2009; supplementary taxes; request for revision; In the present case, the taxpayer husband was unable to demonstrate the extent to which the additional pile of files (415 documents in ancillary files), which were not available either to the inspection of files or to the assessment authority, caused the discretionary assessment to suffer from a serious deficiency. The application for revision is dismissed.
The application for annulment concerned post-tax and penalty tax proceedings of an independent real estate and art dealer, initiated on the basis of seized files that were forwarded to the tax office of the Canton of Zurich within the framework of administrative assistance due to customs and VAT proceedings. The Federal Supreme Court upheld the appeal of the wife regarding her inclusion and joint and several liability (judgment of 18 September 2018 2C_799/2017 / 2C_800/2017, cf. our article of 7 October 2018 and 11 July 2021). - Judgment of 19 October 2021 (2C_781/2021): Value added tax, tax periods 2012-2014; The dispute and the question to be examined was whether the relative limitation of assessment had occurred with regard to the tax periods 2012 to 2014. If this was not the case, the Federal Supreme Court also had to clarify whether the lower court had assumed, in accordance with federal law, that the claimed input tax in the amount of CHF 7,200 was excluded from deduction. The Federal Supreme Court held that the FTA had interrupted the running of the relative statute of limitations for the aforementioned tax periods. The statute of limitations for the assessment had not yet occurred, neither in relative nor in absolute terms. As far as the claimed input tax is concerned, the court concludes that, for lack of sufficient proof, the input tax deduction is to be denied and the offset is to be confirmed. Dismissal of the appeal.
- Judgement of 25 October 2021 (2C_722/2021): Value added tax, tax periods 2007-2015; The dispute and to be examined was whether the requirements for the reinstatement of a missed deadline were met in the present proceedings. The Federal Supreme Court came to the conclusion that the application for reinstatement was to be rejected as the legal requirements were not fulfilled. Dismissal of the appeal.
- Ruling of 18 October 2021 (2C_261/2021): State and municipal taxes Zurich (2017); The Zurich half-rate procedure, which was in force until 31 December 2019, is not applicable in the absence of income from a qualified participation that is taxable (in whole or in part) in the Canton of Zurich. For owners of real estate in Zurich who are resident in another canton, the result is that dividend income is only taken into account in the rate-determining manner for state and municipal taxes in the canton of Zurich and is excluded from taxable income. Dismissal of the taxpayer's appeal.
Decisions are listed chronologically by publication date.
