Overview of tax law decisions of the Swiss Federal Supreme Court published between November 21 - 27, 2022:
- Judgment of November 8, 2022 (2C_826/2022): Direct federal tax and cantonal and communal taxes 2020 (Ticino); restoration of time limit; the lower court rightly refused to restore the time limit for filing an objection. The taxpayers argued that their fiduciary had assumed, based on a response from an employee of the tax administration, that the assessment was final. However, the trustee office in question should have been aware of the applicable procedural rules. In addition, the deadline for filing an objection was also noted on the assessment ruling. Dismissal of the taxpayer's appeal.
- Judgment of 11 November 2022 (2D_21/2022): Inheritance tax (Geneva); Restoration of time limit; The lower court rightly considered that in the present case the bank's failure to transfer the advance on costs within the time limit was to be blamed on the complainant. The latter should at least have made sure that the payment had been made, even if there had never been any difficulties with payments before. Dismissal of the appeal of the administrator of the estate.
- Judgment of 27 September 2022 (2C_988/2021): Direct federal tax and cantonal and communal taxes 2015 (Appenzell Ausserrhoden); in dispute are various profit offsets at the complainant A. AG. Several of the offsets made by the lower court relate to expenses whose business justification has not been sufficiently proven. Among others, these are: (i) assumption of costs of insurance premiums for the motorcycle of an apprentice, (ii) voluntary contribution to C. GmbH, (iii) commission paid to D. GmbH, (iv) cash payment to F. and (v) assumption of a leasing rate for a company vehicle. Further offsets are based on the grounds that there is a hidden profit distribution in connection with, among other things, (i) the acquisition of a Porsche Panamera, (ii) three legal consultations recognized as expenses, (iii) the sale of a company vehicle, and (iv) the underpriced leasing of a building to an employee. In summary, one profit offset proves to be unfounded (regarding the assumed leasing rate for a company vehicle) and, in connection with a second profit offset, the tax assessment authority has to re-record the tax bases (regarding the acquisition of a Porsche Panamera). The other offsets are not objectionable. Partial approval of the appeal of the taxpayer A. AG and remittal of the case to the tax authority in accordance with the recitals.
- Judgment of November 4, 2022 (2C_137/2022): Direct federal tax and cantonal and communal taxes 2007 (Vaud), co-ownership, imputed rental value and maintenance costs of private real estate; In the present case, the facts established in the contested judgment show that the taxpayer and his cohabiting partner were registered in the land register as co-owners of a property in 2007, each with a half share. The taxpayer invokes in vain the existence of the agreement with his cohabiting partner in order to obtain the allocation of 4/5 of the rental value of the property to himself, since this agreement did not lead to an amendment of the land register entry, which alone is decisive. Consequently, the lower court correctly attributed to him (only) half of the imputed rental value of the property under Art. 21(1)(b) DBG. The costs for the maintenance of a private property are deductible as profit costs. In the case of owner-occupied real estate, only the maintenance costs that are directly and immediately related to the taxable imputed rental value are deductible. It follows that a co-owner who is taxed for half of the imputed rental value of the property can only deduct half of the maintenance costs incurred on the property, even if he/she has borne a higher share of the costs than corresponds to his/her share of the co-ownership. A different contractual allocation of costs has no effect on tax law, which is modeled on property law. Furthermore, it is not objectionable that the lower court offset the maintenance costs paid by the taxpayer in excess of his share as a claim against his cohabiting partner, since it could not recognize any intention of the taxpayer to make a gift according to the relevant facts. Dismissal of the taxpayer's appeal.
Non-entry decisions:
Decisions are listed chronologically by publication date.
