Decisions of the Swiss Federal Supreme Court (CW 9 - 2022)

Overview of the tax law decisions of the Swiss Federal Supreme Court published between 28 February - 6 March 2022:

Judgment of 20 December 2021 (2C_927/2020): Handänderungssteuer 2014 (Valais); in dispute is whether the lower instance correctly determined the tax object and tax subject for the handänderungssteuer. The tax applies to deeds and documents that legally or economically transfer property, namely all transfers of shares in real estate companies, including minority shareholdings without power of disposal over the company's real estate, which are taxed on a pro rata basis. The lower court considers the resolution of the AGM on the capital reduction and the subsequent capital reduction to be the tax object and not the individual purchase agreements of the remaining five shareholders, which is not arbitrary. C. AG itself purchased the shares from the two departing shareholders and not the remaining shareholders. The lower court considered the five remaining shareholders to be economic acquirers. The present situation is special in that the real estate company itself is the purchaser of the shares. As a result of this procedure, the shareholdings of the remaining shareholders in the real estate company have each increased from 1/7 to 1/5. If, under these circumstances, the lower court now qualifies the remaining shareholders as purchasers as well and thus as a taxable entity, it does not apply Art. 10 para. 1 HG/VS in a manifestly untenable manner. Dismissal of the taxpayer's appeal.
Judgment of 2 February 2022 (2C_666/2021, 2C_721/2021): State and communal taxes 2011 (Aargau); The lower instance correctly assumed that the taxpayer would have been threatened with invalidity with a probability bordering on certainty if he had continued his self-employment as a farmer and that there was a causal connection between the invalidity and the termination of the business. The lower instance also correctly applied cantonal tax law by assessing liquidation profits in the amount of CHF 302,200 for the 2011 tax year, which are to be taxed separately in the procedure pursuant to section 45 para. 1 lit. f StG/AG; dismissal of the appeal of the cantonal tax office.
Judgment of 2 February 2022 (2C_911/2021): Property and church taxes 2015-2017 (Fribourg); The lower instance correctly dismissed the complainants' request for free legal assistance because it considered the complainants' request to be futile; The complainants believe that denominational affiliation depends on whether one has concluded a membership contract with the church. The complainants do not explain how federal law or constitutional rights are to be violated if no membership contract is required for denominational affiliation, nor is this apparent; dismissal of the taxpayers' complaint.
Judgment of 18 February 2022 (2C_918/2021): Direct Federal Tax and State and Municipal Taxes 2015 (Vaud); Real estate gains; According to the facts established in the contested judgment, the complainant carried out several significant real estate transactions between 1998 and 2015 and showed an intention to reinvest the gains obtained in new real estate projects. He has thus engaged in a sufficiently intensive activity to give his transactions a systematic and planned character. As for his professional skills and expertise in real estate, these are evidenced to some extent by his training as a plasterer and painter, but above all by his activity as Chairman of the Board of Directors of a company specialising in real estate development; dismissal of the taxpayer's appeal.

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