Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 24 February - 1 March 2020.

  • Judgment of 29 January 2020 (2C_1081/2019): Real estate gains tax (Zurich); In the case of the sale of a plot of land encumbered by building rights to the holder of the building rights, the land value of the unencumbered plot of land alone is decisive for determining the market value - due to the economic union of the building rights plot with the encumbered plot of land that goes hand in hand with the purchase and thus as a result of the sale of the unencumbered plot of land. The cash value of the ground rent owed for the remaining term of the contract and the discounted value of the reversionary compensation are irrelevant. Dismissal of the appeal.
  • Judgement of 31 January 2020 (2C_44/2018): State and municipal taxes (Bern) and direct federal tax 2010-2012; In the present case, the taxpayer has received numerous payments as a self-employed person; Most of these payments were made by individuals and some by churches; The administrative court rightly referred the case back to the tax administration for reassessment, as it must be clarified in each individual case whether taxable income or tax-free income (donation or support) is involved; dismissal of the tax administration's appeal.
  • Judgment of 4 February 2020 (2C_54/2020): State and municipal taxes (Geneva) and direct federal taxes 2003-2012; the judgment of the lower court declaring the appeal for late payment of the advance on costs inadmissible is not arbitrary; dismissal of the taxpayers' appeal.
  • Judgement of 30 January 2020 (2C_1001/2018): State and municipal taxes 2013 (Basel-Stadt); Depreciation on real estate; The lower instance did not determine whether the properties in question are private or business assets or whether they belong to the business assets as investment properties, nor did it comment on the possibly permissible scope of the depreciation; The matter is rejected by the lower instance to supplement the facts; Approval of the appeal.
  • Judgment of 10 February 2020 (2C_927/2019): Value Added Tax (2013-2016); According to the Federal Supreme Court, the employment of women in the erotic club of the complainant is also considered to be dependent on the complainant for VAT purposes, which is why the services are to be attributed to the complainant. Since the complainant had not entered the turnover in the accounts, the FTA was right to estimate the turnover on the basis of its dutiful discretion. Rejection of the taxpayers' complaint.
  • Judgement of 29 January 2020 (2C_962/2018): VAT, group taxation as of 6 August 2014; in principle, it is not disputed that the A Limited as well as the B Company fulfil the material requirements for group taxation according to Art. 13 (1) MWSTG. However, it is disputed whether the two branches can claim group taxation - in view of the date of application (9 December 2014) "retroactively" - from 6 August 2014, or whether this is only possible from 1 January 2015. The Federal Supreme Court concludes that on the basis of the facts established in the first instance, it cannot be answered whether the complainants should have been granted group taxation as early as 6 August 2014. Approval of the appeal and rejection of the new decision to the Federal Administrative Court.
  • Judgment of 6. February 2020 (2C_510/2018): Cantonal and communal taxes as well as direct federal tax 2011 (Berne); Lump-sum benefits from occupational pension schemes; right of taxation; it was disputed in the Federal Supreme Court whether a Swiss withholding tax may be levied on a lump-sum benefit from pension schemes that the Swiss Post Pension Fund had withheld from a former employee of a subsidiary resident in Thailand; Since the Swiss Post subsidiary qualifies as a joint-stock company under private law and the respondent did not work for a contracting state, political subdivision or local corporation, the right of taxation for the capital benefit paid out is only available to the state of residence (Thailand); dismissal of the appeal by the tax administration in Berne.
  • Judgment of 24 January 2020 (2C_404/2019): State and municipal taxes Aargau 2008: Objection to discretionary assessment; in the present case, the reminder of 18 January 2016 fulfilled the purpose of the reminder requirement, despite subsequent telephone discussions between the parties. The law does not provide for repeated reminders. The complainant cannot rely in good faith in her favour on the fact that, according to the Tax Commission, the requirements of a proper objection are sufficient (since, in the absence of a further reminder, the formal requirements for a discretionary assessment are not met), not only because she is represented by a tax specialist company. In the present case, the procedural requirements for a (qualified) objection against a discretionary assessment are not met and the appeal should therefore have been allowed in the first place. The appeal is dismissed in so far as it is admissible. ‍
  • Judgment of 6 February 2020 (2C_500/2019, 2C_501/2019): VAT (tax periods 2008 - 2015); kickboxing courses for adults offered by the taxpayer are subject to VAT, as there is no exempt educational service; approval of the complaints of the FTA. ‍
  • Judgment of 11 February 2020 (2C_704/2019): Real estate gains tax canton of Zurich: replacement purchase of owner-occupied property; in the present case, the husband (sole owner) sold the family home in 2010. In 2011 the wife bought another family apartment in sole ownership. The tax office did not take into account the replacement procurement due to the lack of subject identity. The StHG leaves the cantons the freedom to tax the special income tax separately for married couples - unlike the general income tax. The independent consideration of the Canton of Zurich does not violate federal law. Dismissal of the appeal. ‍
  • Judgment of 12 February 2020 (2C_680/2019): State and municipal taxes (Grisons) and direct federal taxes in 2018; due to the model of full deductibility of contributions/premiums and full taxability of benefits, lump-sum benefits from occupational pension schemes are fully taxable and cannot be split into partial tax-free capital gains; dismissal of the taxpayer's appeal. ‍

Non-occurrence decisions / inadmissible complaints:

Decisions are listed chronologically by publication date.

Tax topics covered in this post:
Property Gains Tax
Income Tax
Value Added Tax (VAT)
Profit Tax