Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week of 1 - 7 March 2021.

  • Judgment of 1 February 2021 (2C_780/2018): Administrative assistance DTA CH-NL; The dispute in this case is whether administrative assistance is permissible exclusively for the purpose of sanctioning a taxpayer. Although the term "tax" in the administrative assistance clause does not also include tax penalties, the wording "enforcement of domestic law relating to taxes" does not only include the tax assessment, but also the sanctioning under tax law. If the material scope of application of tax administrative assistance also includes the imposition of tax penalties, it is irrelevant whether the information in each case serves the tax assessment and also the imposition of tax penalties, or whether the information is relevant exclusively for the imposition of tax penalties. Both serve the enforcement of domestic tax law. This is also in line with the purpose of international administrative assistance in tax matters. The requested information must be transmitted in compliance with the principle of speciality. Appeal of the FTA upheld.
  • Judgment of 1. February 2021 (2C_139/2020): State and municipal taxes 2012 (Aargau); Offsetting of private living expenses; In the case of the limited liability company of the taxpayer resident in the canton of AR, various expenses were offset; The canton of AG subsequently accepted these offsets without examination; The individual offsets were in dispute and had to be examined in the present case; According to the Federal Supreme Court, there is no automatic offsetting mechanism in the case of two-dimensional facts, but rather the usual distribution of the burden of proof; In deviation from this, however, a shareholder who is at the same time a corporate body and/or controlling shareholder of the company must dispute in detail the existence and amount of a pecuniary benefit claimed by the assessment authority, which causes the authority to make a discretionary surcharge; The taxpayer did not succeed in doing this here; Dismissal of the taxpayer's appeal.
  • Ruling of 10 February 2021 (2C_406/2020): Direct Federal Tax and Cantonal and Municipal Taxes 2014 (Valais); The dispute in this case was whether the lump-sum benefit paid to the taxpayer is subject to the separate taxation provided for in Art. 38 DBG for lump-sum benefits from pension plans. In the present case, the taxpayer does not exercise any self-employed activity, but has merely taken steps to establish a joint-stock company, whereby she intended from the outset to exercise her activity as an employee of this company. Consequently, the taxpayer did not withdraw the capital in question in order to take up a self-employed activity, but to invest it in the newly established limited company, which precludes the application of Article 38 of the Federal Tax Code in this case. Dismissal of the taxpayer's appeal.
  • Judgment of 11 February 2021 (2C_117/2021): 2017 state and municipal taxes (Aargau); administrative fine; the taxpayer did not submit the 2017 tax return despite repeated requests and reminders. Instead, he informed the tax authorities that the factors had not changed significantly, so that a new assessment was not necessary. Dismissal of the taxpayer's appeal.

Non-entry decisions / administrative assistance:

Decisions are listed chronologically by publication date.

Tax topics covered in this post:
Treaties
Income Tax
International Tax