Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 17 - 23 December 2018 (CW 51 ) and in the week of 24 - 30 December (CW 52 ).

  • Judgment of 3 December 2018 (2C_1020/2018): Staats- und Gemeindesteuer 2010 (Aargau); the fictitious delivery, comes into play if the postal item is not accepted or collected; in the present case, however, it was undisputed that the taxpayer extended the collection period and collected the assessment ruling from the post office; the objection was made late and the complaint must be dismissed as unfounded.
  • Judgment of 4 December 2018 (2C_974/2018): Direct federal tax and state and municipal tax 2003-2004 and 2010-2012 (Geneva); proof of payments to persons in need of support abroad is subject to a stricter burden of proof. The complainants were not able to provide this evidence. Dismissal of the appellants' appeal.
  • Judgment of 29 November 2018 (2C_647/2018): Direct federal tax and cantonal and communal tax 2016 (Solothurn); assessment according to dutiful discretion; in accordance with the participatory burden of proof, taxpayers could and had to demonstrate in the present proceedings that the presumed use of unrecorded payment slips was contrary to the facts; taxpayers were unable to provide evidence to that effect; the complaint proves to be manifestly unfounded and is dismissed.
  • Judgment of 30 November 2018 (2C_586/2017): Cantonal and municipal tax 2004-2009 (Neuchâtel); assessment according to dutiful discretion; in accordance with the participatory burden of proof, taxpayers in the present proceedings could and had to show that the presumed use of unrecorded payment slips was contrary to the facts; taxpayers were unable to provide any evidence to that effect; the complaint proves to be manifestly unfounded and is dismissed.
  • Judgment of 10 December 2018 (2C_11/2018): Direct federal tax and cantonal and municipal tax 2003, 2005-2010 (Geneva); Swiss subsidiary, French sister company and Dutch parent company. The results of the R&D activities carried out by the French sister company, which were charged to the Dutch parent company using the cost plus 15% method, were made available by the Dutch parent company to the Swiss subsidiary in return for a payment of 2.5% of its sales. The Dutch parent company had (almost) no substance; the Swiss subsidiary had 60 employees, the patents were registered to the Swiss company and the Swiss company was de facto managing the group. Thus, compensation to the Dutch parent company corresponding to a margin of between 25% and 240% was considered a hidden profit distribution.
  • Judgment of 7 December 2018 (2C_505/2018): Direct federal tax and cantonal tax 2012-2013 (St. Gallen); the appellant is not able to rebut the presumption that the intellectual property rights in question had no value; the purchase does not stand up to a third-party comparison; the appellant must bear the consequences of the lack of evidence; the appellant made a hidden profit distribution with the purchase of the intellectual property rights and the set-off therefore proves to be lawful; the appeal is dismissed

Non-occurrence decisions / inadmissible complaints:

Decisions are listed chronologically by publication date.

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