Overview of tax law decisions of the Swiss Federal Supreme Court published between November 28 - December 4, 2022:
- Judgment of October 31, 2022 (2C_546/2021) - intended for publication: Direct Federal Tax and Cantonal and Municipal Taxes 2017 (Vaud); in dispute is the tax qualification of a compensation payment in the amount of CHF 25,000 made in 2017 by the former employer to the employee - based on a settlement reached at a conciliation hearing. The settlement was preceded by a lawsuit filed by the employee due to abusive termination. In view of the overall circumstances and in particular the fact that the former employer had agreed to a compensation payment corresponding to more than 80% of the claimed amount in the context of the proceedings for abusive termination and had not formulated the slightest reservation of liability, it does not appear untenable that a recognition of the abusiveness of the termination was assumed. With regard to the disputed compensation for the abusive termination pursuant to Art. 336a CO, it can be assumed that this falls overall within the scope of the payments provided for in Art. 24 let. g DBG as compensation for immaterial damages. The compensation pursuant to Art. 336a CO is in fact intended to compensate for the impairment of the employee resulting from the abusive nature of the termination, which by its nature involves a violation of personality. The purpose of the compensation is to compensate for the moral damage caused by the termination (reparation purpose). The fact that another purpose of such compensation is to punish the employer's conduct is not such as to obscure its reparation purpose. Such compensation must therefore be considered in its entirety as a satisfaction payment within the meaning of Art. 24 letter g DBG, Art. 7 para. 4 letter i StHG and Art. 28 para. 1 letter h StG/VD and must therefore be exempted from tax. Dismissal of the appeal of the cantonal tax administration.
- Judgment of 08 November 2022 (2C_772/2021; 2C_773/2021) - intended for publication: Amtshilfe DBA CH-FR; It is disputed whether the Federal Administrative Court is entitled to declare inadmissible the appeal of a beneficial owner of a bank account who has not filed an appeal against a final ruling opened to her by way of publication, if she files an appeal against a final ruling opened to the account holder. The present request for administrative assistance was the subject of the landmark ruling BGE 146 II 150 of 26 July 2019 (see our articles of 27 July 2019 and 08 December 2019). Art. 14 para. 3 - 5 StAhiG provides for a special type of notification for data subjects residing abroad. In the present case, the FTA did not know the names of the persons affected by the request for administrative assistance, since they were identified in the request not by name and address, but by account numbers. The information on the residence of the person entitled to appeal is either contained in the administrative assistance request or in the documentation that the information holder sends to the FTA. In either case, the AIAG does not impose any obligation on the FTA to verify or investigate this information, in particular to determine whether the persons associated with a residence abroad do not include some who now reside in Switzerland. If a person entitled to appeal has appointed a representative who can accept service in Switzerland, the AIAG also does not require the FTA to contact that representative to ask whether he or she does not represent other persons entitled to appeal in the same proceedings. For persons associated with a domicile in France who have not indicated an address for service in Switzerland, direct service is in principle possible under Article 17(3) MAC, but only for tax periods beginning on or after January 1, 2018. The publication of the final ruling in the Federal Gazette was therefore proper. The beneficial owner of a bank account who does not file an appeal against a final ruling duly served on her has the effect that the final ruling becomes legally binding. Thus, she cannot file an appeal against the same ruling that is later issued to the holder of the bank account. The fact that the FTA did not serve the two final rulings on the two persons at the same time is not objectionable. There is no procedural rule prescribing a specific order. Dismissal of the appeal of the taxpayer A. AG and the successor C.B of the deceased B.B.
- Judgment of 8 November 2022 (2C_569/2022): Administrative assistance DBA CH-FR; the same legal question arose as in the judgment of 8 November 2022 (2C_772/2021; 2C_773/2021) (cf. the summary above).
- Judgment of November 15, 2022 (2C_661/2022): Direct Federal Tax and Cantonal and Communal Taxes 2015 (Valais); in dispute and to be examined in the present case is whether the letter of January 16, 2021 submitted by the complaining couple qualifies as an objection. According to case law, the objection does not have to be substantiated in principle; it is sufficient if the taxpayer expresses - at least implicitly - his unconditional will to contest the assessment ruling. In the present case, however, in their letter of January 16, 2021, the complainants limited themselves to requesting "more detailed explanations" from the Cantonal Office, which concerned in particular the determination of an amount of the 2015 assessment record. Nothing in the content of the disputed letter expressly indicated a will on the part of the interested party to oppose the assessment orders of December 17, 2020. By confirming that the relevant letter did not qualify as an objection to the assessment rulings, with the consequence that no objection was filed within the statutory period, the lower court did not engage in excessive formalism. The allegation of violation of Art. 29 para. 1 of the Federal Constitution and the implicit allegation of violation of Art. 132 para. 1 of the Federal Tax Act are therefore dismissed. Dismissal of the taxpayer's appeal.
- Judgment of November 15, 2022 (2C_716/2022): Direct federal tax and state and municipal taxes 2007 (Zurich); the complainant A. AG complains about various offsets made by the cantonal authorities on the basis of Art. 58 para. 1 lit. b second and fifth lemma DBG, because they considered various write-offs and expenses to be not justified in terms of business or recognized hidden profit distributions therein. The appeal proves to be unfounded with regard to all disputed offsets. Dismissal of the appeal of A. AG.
Decisions are listed chronologically by publication date.