Overview of tax law decisions of the Swiss Federal Supreme Court published between February 13 - 19, 2023:
- Judgment of January 5, 2023 (2C_353/2022): Direct Federal Tax and State and Municipal Taxes 2012 (Zurich); In dispute is whether the income that the complainant generated within the scope of his activity for C. mediated by D. AG originates from a self-employed or an employed gainful activity. According to the Federal Supreme Court, the question as to whether self-employment or employment exists in an individual case is not assessed on the basis of the legal nature of the contractual relationship between the parties, but on the basis of economic circumstances. On the basis of the agreements existing between D. AG and the complainant, the lower court came to the conclusion that the indications for the existence of a personnel leasing predominate. In particular, the elements of externally determined work organization, being bound by instructions and integration of the complainant into the company of assignment in terms of location and time are given. In the framework agreement with D. AG, the complainant was also prohibited, under threat of a contractual penalty, from accepting orders during the term of the respective individual project agreement which substantially affect the interests of D. AG or its contractual partners. It is not necessary to answer whether D. AG hired out personnel or whether it accepted an order from C.. Even if the complainant, as he himself claims, had considerable leeway in the exercise of his activity, the final decision-making right in any case remained with C. Contrary to the complainant's opinion, the agreement of a time wage also speaks for an employed activity. Dismissal of the taxpayer's appeal.
- Judgmentof27 December 2022 (2C_160/2022): Direct Federal Tax and State and Municipal Taxes 2016 (Zurich); Maintenance Contributions; The question at issue is the extent to which the maintenance contributions made by the divorced father to the daughter living in Thailand are tax deductible. Although the father was able to prove that he had actually made contributions in the amount of CHF 39,820 to the daughter, he was not able to prove that there was also a legal obligation to make maintenance payments in the same amount. Therefore, the Federal Supreme Court, like the previous instances, considered the submitted documents as insufficient to determine the amount of the maintenance obligation. This in particular with reference to the maintenance agreement with the divorced mother of the child, which was only concluded in 2020. Subsequently drawn up contracts, which are only drawn up years later for evidentiary purposes, cannot be granted any probative value. Accordingly, the discretionary assessment made by the Zurich Tax Office, which provides for a maintenance obligation of CHF 18,000, is not objectionable. Dismissal of the taxpayer's appeal.
- Judgment of January 23, 2023 (2C_290/2022): State and municipal taxes 2011-2012 (Geneva) and back taxes direct federal tax 2011; The question in dispute was in which tax period the interest on arrears on back taxes can be deducted from income. In order to define this point in time, the cantonal administration and the lower court relied on the due date of the interest in question, i.e. the date on which it is owed by the taxpayer, while the complainants argue that for each tax period the interest on arrears accrued in each period should have been taken into account. The lower court's reasoning that taxpayers may deduct interest on late payment of back taxes from their income only from the due date, i.e., when the interest is due, and not merely by virtue of the fact that it has accrued, is not arbitrary, taking into account the theory of net asset appreciation and case law. Dismissal of the taxpayer's appeal.
Decisions on non-admission and write-offs:
Decisions are listed chronologically by publication date.