Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 18 to 24 February 2019.

  • Judgment of 1 February 2019 (2C_288/2018): State and Municipal Taxes 2003 - 2004 (Zurich); the absolute limitation period for the after-taxes for the 2003 period expired on 31 December 2018; the appeal is therefore upheld with regard to the 2003 tax period and the ruling of the Administrative Court of the Canton of Zurich of 21 February 2018 is set aside in this respect. The remainder of the appeal is dismissed.
  • Judgment of 30 January 2019 (2C_68/2018), official publication scheduled: Direct federal tax and state and municipal taxes 2013 (Valais); the complainant voluntarily continued his employment between 65 and 70 years of age. Since he received his LOB pension from the age of 65, he agreed with his employer that the pension would be deducted from his monthly salary and that a corresponding lump-sum settlement would only be paid at the end of his employment relationship. No separate taxation according to Art. 38 in connection with 17 para. 2 DBG, because it is not a "similar lump-sum settlement of the employer" with pension character. This qualification is to be refused in accordance with KS of the FTA No. 1 of 3 October 2002 (point 3.2), because it is merely a delayed payment for work performed. Taxation under Article 37 DBG as a recurring benefit is also ruled out because the delayed payment was agreed with the complainant or was not made without his consent. A contrary approach would allow abusive tax planning.
  • Judgment of 30 January 2019 (2C_660/2017): Direct federal tax and state and municipal taxes for 2009, 2010 and 2012 (Valais); the taxpayer had received unemployment benefits in 2009 and 2010 and became liable for part of these benefits to be refunded to the unemployment insurance fund on the basis of a 2011 decree He fulfilled his obligation to pay back in 2012 and claimed a corresponding deduction in his 2012 tax return based on a certificate for "negative income" from the unemployment insurance fund. However, expenses for debt redemption are not deductible pursuant to Art. 34 lit. c DBG. The reason for this is that the repayment results in a simultaneous reduction of assets (postal or bank account) and liabilities (debt to the unemployment fund) but does not change the total net assets of the taxpayer. However, there is a reason for revision with regard to the 2009 and 2010 tax periods. As a rule, based on Art. 147 para. 1 lit. a DBG, only non-genuine novenas (which occurred before the order) are to be taken into account, but exceptionally, genuine novenas (which occurred after the order), such as an order concerning a restitution obligation, must also be taken into account, because such genuine novenas highlight a deficient legal view of the facts afterwards. The 90-day period for filing the appeal with respect to the 2009 and 2010 tax periods was observed and, contrary to the opinion of the tax authorities, did not start at the latest with the refund in 2012, whereas in the present case the respondent did not file the appeal until 2014. However, he was in good faith because he was in possession of a certificate from the unemployment insurance fund which gave him the impression that he could claim a deduction in the 2012 tax period.

Non-occurrence decisions / inadmissible complaints:

Decisions are listed chronologically by publication date.

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