Overview of the tax rulings of the Swiss Federal Supreme Court published between December 4 - 10, 2023:
- Judgment of November 17, 2023 (9C_711/2022) intended for publication: Direct federal tax 2009 (St. Gallen); The dispute is whether the lower court was right to assume that the taxable person does not have to take effective notice of the official act, but that the reproduction of the assessment proposal in a letter from a third party also interrupts the limitation period. The taxpayer A. argues that the statute of limitations for assessment has expired for the year 2009. The lower court, on the other hand, takes the view that the relative limitation period was interrupted in 2014. The limitation period can be interrupted under certain circumstances. Art. 120 para. 3 lit. a DBG does not stipulate the form in which the official act must be brought to the attention of the tax authorities. The grammatical interpretation does not provide a clear result. The materials do not provide any relevant information either. In line with the literature, the interpretation of Art. 120 para. 3 lit. a DBG must be based on the approach developed for the opening of decisions. Contrary to the lower court, the limitation period is therefore not interrupted by the mere possibility of knowledge if the tax authority does not directly inform the taxpayer or jointly liable person or their tax representative of its official act. The tax office did not communicate the assessment proposal directly to the complainant. Subject to a relationship of representation, the fiduciary and the tax consultancy firm as well as their employees who were aware of the assessment proposal cannot be attributed to the appellant's sphere of power. Neither the evidence cited by the lower court nor the other files allow the conclusion to be drawn that an agency relationship existed. Approval of the taxpayer's appeal.
- Judgment of November 21, 2023 (9C_14/2023) scheduled for publication: Cantonal and communal taxes Canton of Geneva; At issue was whether the Geneva Court of Justice (Cour de justice) was right to assume that the appellant could not initiate subsequent tax and evasion proceedings against the respondent for the years 2011 to 2013 because it had not coordinated with the tax administration of the canton in which the company is domiciled. In the present case, it is undisputed that the taxpayer, which has its registered office in the canton of Zurich, is also liable to pay tax in the canton of Geneva on the basis of economic affiliation, as it operates a branch there. The Federal Supreme Court comes to the conclusion that it is in line with the StHG if the secondary canton is not denied the right from the outset to initiate supplementary tax proceedings if it is of the opinion that the conditions for this are met. These statements also apply in the case of tax evasion within the meaning of Art. 56 para. 1 StHG. The previous case law (see BGE 139 I 64) is hereby abandoned by the Federal Supreme Court, as this established the principle that the secondary canton, which issued a definitive assessment order before the canton of residence or domicile, has forfeited the right to initiate subsequent tax proceedings (and even more so tax evasion proceedings), even if the conditions for this were met. The appeal is therefore upheld on this point and referred back to the cantonal lower instance for reassessment.
- Judgment of November 22, 2023 (9C_598/2023): Direct federal tax 2004-2009, 2011-2021 and cantonal and communal taxes 2011-2021 (Vaud); security; The lower court rightly decided that the tax administration's request for security was justified. The appellant does not succeed in demonstrating how the determination of a risk to payment and the determination of the amount of tax owed was manifestly incorrect or arbitrary. Dismissal of the taxpayer's appeal.
- Judgment of November 13, 2023 (9C_668/2022): Direct federal tax 2009 and 2011 (determination of local jurisdiction Geneva and Schwyz); At issue in this case is the question of local jurisdiction for the assessment of the complainant between the cantons of Geneva and Schwyz. In its ruling, the Federal Supreme Court confirmed its rule on the burden of proof with regard to unlimited tax liability. Accordingly, the taxpayer must provide evidence of a new subjective tax liability if an existing tax liability is relinquished. In the present case, this was not possible for 2009, as both the taxpayer's son and his partner lived in the canton of Geneva and the taxpayer regularly returned to Geneva. The taxpayer's gainful employment in the canton of Zurich, to which he commuted from his place of residence in Schwyz, was not sufficient, especially as it was not a managerial position. This changed for the 2011 tax period, as the taxpayer's former partner and now wife moved to live with him in the canton of Schwyz and he put his property in Geneva up for sale. This result was not affected by the fact that the taxpayer's son remained in the canton of Geneva until the beginning of 2012 in order to finish the school year in the canton and only transferred to a private school in the canton of Schwyz in 2012. Approval of the taxpayer's appeal for the 2011 tax period; rejection of the taxpayer's appeal for the 2009 tax period.
- Judgment of November 2, 2023 (9C_730/2022): Import duties, levy period 2020; correction; there is a claim for correction even if the error of the freight forwarder was grossly negligent. Appeal upheld (see our article from 02.10.2022 https://www.taxlawblog.ch/blog/entscheide-des-schweizer-bundesverwaltungsgerichts-kw-39-2022).
- Judgment of November 23, 2023 (9C_706/2022): Cantonal and communal taxes 2020 (Fribourg); profit costs; At issue is the deductibility of actual travel costs between home and work. A journey by public transport of 2 h 49 min compared to a journey by private car of 1 h 43 min appears to be unreasonable. In addition, the number of kilometers traveled (292 km in this case) is not a sufficient reason to deny the deduction in view of the fact that the taxpayer has irregular working hours as a police officer (including nights and weekends), the job is only of a temporary nature and she is a single parent. Dismissal of the tax administration's appeal.
Decisions on non-admission and write-offs:
Decisions are listed chronologically by publication date.
