Overview of the tax law decisions of the Swiss Federal Supreme Court published between 7 - 13 February 2022.

  • Judgment of 28 December 2021 (2C_55/2021): State and municipal taxes and direct federal tax 2015 (Zurich); Double taxation; Due to their separation in the 2015 tax year, the complainants are of the opinion that they should be assessed separately. Spouses are assessed jointly for cantonal income and wealth taxes until the legal or actual separation of the marriage. A marriage is actually separated for tax purposes if the joint household and the joint use of funds have ceased. Under certain circumstances, a separation in this sense can already be assumed if the joint household has been dissolved, but the joint resources have not yet been completely disentangled at this point. However, it is a prerequisite that the disentanglement of the joint resources is imminent and appears to be merely a question of time. This is not the case with the complainants, especially since they said they wanted to do without unbundling for the time being. In the meantime, the complainants also appear to be maintaining a joint household again, as they gave the same address before the Federal Supreme Court. Although not all of the assumptions on which the lower court based its findings have a viable basis, it nevertheless appears appropriate to assign the complainant's centre of life to the Canton of Zurich for the 2015 tax year, in particular due to his relationship with his spouse. Dismissal of the taxpayer's appeal against the Canton of Zurich; upholding of the taxpayer's appeal against the Canton of Graubünden.
  • Judgment of 28 December 2021 (2C_936/2020): Administrative assistance DTA CH-IN; In the present case, the Indian MoF is requesting administrative assistance with regard to a natural person who is a "beneficiary" of a trust for which a company holds an account at a Swiss bank. The legal question that is disputed and must be clarified in this context is whether and to what extent bank information relating to this account can be expected to be relevant. The lower court took the view that beneficiaries of an irrevocable discretionary trust only have an entitlement to distributions. The complainant took the same position and concluded that bank information from a bank account held in such a trust is not likely to be relevant in administrative assistance proceedings against the beneficiary. The Federal Supreme Court considered that Indian law was applicable to the question of the tax treatment of the trust and that it was not up to the Swiss authorities to examine whether an "irrevocable discretionary trust" existed. Nor is it for the FTA to deal with the jurisprudence of the Indian Supreme Court, even if, as the complainant argues, it has ruled that irrevocable discretionary trusts are not to be imputed to the beneficiaries. It must therefore be assumed that all documents edited by Bank B. AG are likely to be relevant. Dismissal of the complaint of the complainant A.
  • Judgment of 23 December 2021 (2C_753/2020): State and municipal taxes and direct federal tax 2006-2011 (St. Gallen); Determination of tax domicile and assessment procedure; The taxpayer argues for the first time before the Federal Supreme Court that it is up to the FTA to carry out the delimitation of tax responsibilities between the cantons of St. Gallen, Zurich and Schwyz. Further, the tax authorities had committed numerous and blatant violations of his party and procedural rights in determining the centre of his vital interests. The Federal Supreme Court states that the taxpayer is to be held liable for his choice of the ordinary legal remedy in the canton of St. Gallen and that the use of evidence seized in criminal proceedings is in principle unproblematic in administrative proceedings. Furthermore, it must be denied that the taxpayer's real place of residence was abroad or in another canton. Dismissal of the taxpayer's appeal insofar as it is to be upheld.

Non-occurrence / write-off:

Decisions are listed chronologically by publication date.

Tax topics covered in this post:
Income Tax
Wealth Tax
Value Added Tax (VAT)
Treaties
International Tax