Overview of the tax law decisions of the Swiss Federal Supreme Court published during the week of 14 - 20 December 2020.
- Judgment of 23 November 2020 (2C_387/2020): VAT (2010 to 2012); It is not arbitrary that the lower court assumed that the commissions paid abroad to certain persons do not constitute remuneration for work but remuneration for an entrepreneurial activity subject to withholding tax; there is also no exempt foreign intermediary service within the meaning of Art. 23 para. 2 no. 9 MWSTG, since the persons abroad would have had to act as direct representatives of the taxpayers for this purpose; Dismissal of the taxpayer's appeal.
- Ruling of 30 November 2020 (2C_895/2019): intercantonal tax law (2016-2019); in dispute is whether the company has its actual administration in the canton of GR or in the canton of TI. The taxpayer has not demonstrated that it has sufficient infrastructure in the canton of GR. In addition, he has the same telephone number as for his companies in the canton of TI and his correspondence by letter to the tax office has always originated from the canton of TI. In 2019, significant changes were made which have not yet been taken into account in the argumentation for the actual administration. Partial approval of the taxpayer's appeal for the 2019 tax period and dismissal of the appeal for the 2016-2018 tax periods.
- Judgment of 01 December 2020 (2C_310/2020): Administrative assistance DTA CH-USA; Right to information; The respondents to the appeal all benefited from a final and enforceable civil law judgment prohibiting a certain bank from transmitting to the US authorities, outside of administrative assistance proceedings, information enabling them to be identified. At issue is whether the SFTA must inform these individuals if, during the administrative assistance process, it decides not to redact identifying information when transmitting it. These civil judgments demonstrate the existence of a protectable interest on the part of defendants in being informed of the existence of U.S. administrative assistance proceedings. The FTA has abandoned the practice of granting party status to persons with civil judgments by means of a list as a precautionary measure. If it does not intend to resume this practice, it must request from the respective banks (information holders) a list of all persons in respect of whom a civil judgment exists. Dismissal of the FTA's appeal.
- Judgment of 29 October 2020 (2C_745/2020): State and municipal taxes of the Canton of Schwyz and direct federal taxes (2005-2008, 2010-2012); More stringent requirements are to be placed on proof of incorrectness in the case of discretionary assessments. The mere summary of account balances, without dealing in detail with the contrary considerations of the lower court, is not sufficient; procedural and legal costs for criminal proceedings are generally not considered business-related expenses. Dismissal of the taxpayer's appeal.
- Judgment of 30. October 2020 (2C_1021/2019): Direct federal tax and state and municipal taxes 2015 (Graubünden); The two taxpayers founded a construction company (simple partnership) together with their joint 100%-owned AG; The AG contributed a plot of land to this company; This plot of land was structured into condominium units, of which the two taxpayers were allocated 5 units, each with ½ co-ownership; In particular with a view to the planned procedure and the expertise contributed, the Federal Supreme Court upheld the findings of the lower court according to which the taxpayers, in the context of their partnership in the construction company, were considered to be commercial real estate traders, the contributed real estate accordingly as business assets and the transfer of the condominium units as a result as a taxable transaction pursuant to Art. Also in agreement with the lower court, the Federal Supreme Court came to the conclusion that the assignment of the condominium units to the co-ownership of the taxpayers did not constitute a liquidation-related sale or transfer and that the causal connection between liquidation and realisation required for liquidation taxation (Art. 37b para. 1 sentence 1 DBG) was therefore lacking; dismissal of the taxpayers' appeal.
- Judgment of 16 November 2020 (2C_742/2020): Importation of works of art in Schwarzenbach v. Oberzolldirektion (second instance); appeal against the judgment of the Federal Supreme Court A-2905/2020 of 5 August 2020 (judgment following rejection decision), in which the only question still examined was whether the sales commission relationship between the taxpayer and the gallery was simulated (cf. our posts of 27 September 2020 as well as 7 June 2020 and 3 February 2019); as the present appeal hardly contains any arguments that have not already been examined, the Federal Supreme Court refers to the judgment 2C_219/2019 of 27 April 2019; dismissal of the taxpayer's appeal.
- Ruling of 23 November 2020 (2C_886/2020): State and municipal taxes, direct federal tax 2016 (Graubünden); The company held by the taxpayer had booked a rent to the taxpayer. The lower court was entitled to assume that the taxpayer had realised income from immovable assets to this extent. In particular, the taxpayer's argument that no money (or not the full amount) flowed is irrelevant. "The accession or inflow of property is a factual event. It occurs if and as soon as the taxpayer acquires the legal power of disposal over the assets received. The acquisition of rights can take the form of the acquisition of a claim (obligatory right) or of ownership (right in rem). Mere credit notes that precede the payment of the benefit or exist as an alternative to it also fall under the real (and not merely fictitious) income. They are considered to be an inflow of assets even if they are not conceptually accompanied by any liquidity consequences." Dismissal of the taxpayer's appeal.
- Ruling of 23 November 2020 (2D_48/2020): State and municipal tax Aargau 2016 - 2018; remission of taxes, prohibition of novelty, ground for appeal, preservation of time limits in the case of (un)certified emails; uncertified emails that do not meet the requirements of the Federal Act on Certification Services in the Field of Electronic Signature and Other Applications of Digital Certificates (ZertES) are not to be acknowledged for the files in terms of time limits. The Aargau Tax Act does not recognise any right to remission, which is why the taxpayers are not entitled to file an arbitrary appeal. Dismissal of their appeal, insofar as it is to be upheld.
- Ruling of 01 December 2020 (2C_485/2020): Direct Federal Tax and State and Municipal Taxes 2015 (Valais); The dispute is whether the rental costs of an additionally rented apartment can be claimed as disability-related expenses pursuant to Art. 33 para. 1 lit. h DBG. The circular of the FTA provides, from which there is no deviation here, that the accommodation costs are current living expenses and therefore do not constitute deductible disability-related costs. Dismissal of the taxpayer's appeal.
Non-entry decisions:
- Judgment of 29 October 2020 (2F_17/2020): request for revision (tax periods 2002-2004 and 2009); in his 70-page submission, the applicant requested the revision of the tax periods at issue. The request that the tax periods be "corrected in accordance with the actual circumstances" does not satisfy the substantiation principles.
Decisions are listed chronologically by publication date.
