Decisions of the Swiss Federal Court (CW 8 - 2018 )

Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 19 - 25 February 2018.

Judgment of 5 February 2018 (2C_437/2017): Taxi fees; legal basis for partial refund of the fee (Geneva); this is a general question of administrative law regarding the existence of a legal basis for a state action, in casu for refusal of a partial refund of a fee paid.

Judgment of 8 February 2018 (2C_40/2018): Direct Federal Tax and State and Municipal Taxes 2014 and 2015 (Geneva); late objections (30-day deadline) will only be considered in accordance with Art. 133 para. 3 DBG if the taxpayer can prove that he was prevented from submitting the objection in time by military or civilian service, illness, absence from the country or other significant reasons and that the objection was submitted within 30 days after the obstacles ceased to exist. In the present case, the appellant has not been able to prove that he was prevented from doing so and his appeal (against the decision of non-occurrence of the first instance) was therefore dismissed.

Judgment of 6 February 2018 (2C_735/2017): Abstract standards control (Geneva). The StG-GE, which came into force on 1 January 2016, provides that the costs of travel between home and place of work can be deducted at a maximum amount of CHF 500. The complainant is a Swiss woman resident in France who is considered to be "quasi-resident" in Geneva because she generates 90% of her gross income worldwide in the canton. It argues that the limitation of deductions in the StG-GE in this case leads to a violation of Art. 9 para. 2 FZA (prohibition of discrimination with regard to deductions). According to the Federal Supreme Court, this is not the case, since as a quasi-resident she is in a situation comparable to that of a resident, which is why she must be treated equally, which is the case here, since the maximum deduction applies to everyone. Furthermore, according to the Federal Supreme Court, there is no violation of Art. 2 FMPA (right to reside and work in the other contracting state) and no violation of Art. 8 BV and Art. 127 para. 2 BV (principles of generality and uniformity of taxation and the principle of taxation according to economic capacity), because the fact that small differences result from the application of the law (a taxpayer who has to drive a long distance can deduct relatively less than one who lives closer) is not unconstitutional. Finally, the complainant has not succeeded in proving a violation of the separation of powers and the prohibition of retroactive effect. The appellant's appeal is dismissed.

Judgment of 26 October 2017 (2C_201/2016), scheduled for official publication Administrative assistance (DTA Switzerland - Spain); in the area of administrative assistance, no secret negotiations normally take place. In casu, this was requested by the respondent as a well-known person. Reference to the practice of the Federal Supreme Court that even in a public hearing the parties are not mentioned by name if this is not necessary, which is why the hearing will be public in this case. Partial acceptance of the appellant's application as set out in the recitals.