Decisions of the Swiss Federal Supreme Court (CW 50 - 2021)

Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 13 - 19 December 2021.

Judgment of 12 November 2021 (6B_938/2020, 6B_942/2020): Multiple intentional evasion of value added tax; principle of indictment, statute of limitations for prosecution, assessment of penalties: Complainant 1 rightly argues that the principle of aspersion in value added tax criminal law applies to the payment of fines only in the cases regulated in Art. 101 para. 4 and 5 VAT Act. In the present case, neither Art. 101 para. 4 VAT Act nor Art. 101 para. 5 VAT Act apply. In the case of import tax, prosecution is the responsibility of the FCA, which is why Art. 101 para. 5 VAT Act does not apply. Art. 101 para. 4 MWSTG provides for a deviation from the accumulation principle and an appropriate increase in the penalty, as explained, only for further offences committed in ideal competition within the jurisdiction of the FCA. For offences committed in real competition, i.e. by failing to declare goods when importing them into Switzerland at different times or in different places, the principle of cumulation enshrined in Art. 9 of the Criminal Procedure Code therefore applies, contrary to the lower court's view.
Judgment of 18 November 2021 (2C_686/2021): Real estate gains tax 2011 (Bern); The dispute in this case is whether the complainants can claim the costs in the amount of CHF 595,000 as investment costs. In the present case, the only decisive factor is whether the alleged costs for the claimed renovation and refurbishment work were incurred and the corresponding costs were actually spent. The complainants do not provide this evidence. The argument that the receipt of the corresponding payments was simultaneously acknowledged on the craftsmen's invoices also falls flat. Dismissal of the complaint.
Ruling of 4 November 2021 (2C_217/2021): State and municipal taxes and direct federal tax 2014 (Solothurn); lump-sum benefits from pension plans. The dispute in this case is whether the taxpayer has actually taken up self-employment and thus whether there is a reason for cash payment in accordance with Art. 5 para. 1 lit. b FZG that complies with the law. The tax office does not succeed in showing how the lower court's determination of the facts was arbitrary. In contrast to the sub-sector of securities trading, the taxpayer generated income overall (incl. real estate trading) and it is of secondary importance how much of the freed capacity the taxpayer spends on his newly taken up self-employment. Furthermore, there is no legal obligation to invest the freed-up pension money in business assets or to have a minimum duration of self-employment. The conditions for tax avoidance or a retrospective adjustment are also not met. Dismissal of the appeal of the cantonal tax office.

Non-occurrence: