The tax administration of the Canton of Basel-Stadt has published its tax practice (BStP) edition March 2019.
The tax administration of the canton of Basel-Stadt is devoting the following decisions in the published BstP issue March 2019:
- Tax Appeal Commission Basel-Stadt, STRK.2017.143, decision of 18 October 2018: Business assets, participation in a corporation, value adjustment; whether an object of value is to be allocated to private or business assets is decided on the basis of an assessment of all the relevant factual circumstances. Participations are so-called alternative assets that are related to business activities and can also be used for private purposes. They qualify as business assets if they are closely related to the professional activity. Such a close relationship is to be assumed, in particular, if the shareholding gives the holder a significant or even dominant influence over the company, whose business activity corresponds to or is a useful complement to his own, allowing him to expand his original business activity. In casu Capitalization of the investment in a stock corporation in a sole proprietorship and making a value adjustment. Determination by the Tax Appeal Commission that the taxpayer provided the services as an employee of the AG and thus in gainful employment, which is why no improvement in the business results of his sole proprietorship or an improvement in its chances of profit was apparent. Thus, no allocation of the investment to business assets and no possibility of value adjustment
- Administrative Court of Basel-Stadt, VD.2018.118, decision of 24 September 2018: principle of objection, withholding tax, tax avoidance; the principle of objection means that the Administrative Court does not examine the contested decision on its own initiative from all the aspects that come into question, but only examines the objections that have been made in a timely and concrete manner. If the appeal contains a statement of grounds, but the appellant only deals with one of several independent grounds of the contested decision (alternative grounds or main and contingent grounds), the appeal cannot be considered without setting a grace period. Foreign employees who do not have the foreign police settlement permit, but who are resident or domiciled in Switzerland for tax purposes, are subject to withholding tax at source on their income from employment. It is highly unusual for a natural person to set up a one-man company in order to offer his services to a recruitment agency. If tax avoidance is affirmed, taxation is to be based on the legal arrangement that would have been appropriate to achieve the desired economic purpose.
- Administrative Court of the Canton of Basel-Stadt, VD.2018.76, decision of 14 September 2018: proceedings, entitlement to free administration of justice. Any person who does not have the necessary means has a constitutional right to the administration of justice free of charge, if his or her request for justice does not appear to be hopeless (free legal proceedings). To the extent necessary to protect her rights, she is also entitled to free legal assistance (free legal aid). The prerequisites for the administration of justice free of charge are therefore the neediness of the person concerned and the hopelessness of the case. In casu hopelessness of the request, since travel costs of the father to his child cannot be qualified as maintenance costs of the child's mother and are therefore not to be taken into account when determining the deduction for maintenance contributions. Likewise, in the absence of proof of corresponding minimum payments, there is no chance of applying for a deduction of support. In addition, no indigence
- Tax Appeal Commission Basel-Stadt, STRK.2018.64, decision of 27 November 2018: Tax reference, securing. Tax security is a pure measure to secure tax claims regardless of the status of the assessment. The basis for a guarantee can be a definitive or even a provisional assessment. The examination of the Tax Appeal Commission refers to the existence of a reason for securing the tax liability as well as to the existence and extent of the tax liability, which must be substantiated. A detailed clarification of the tax-relevant facts and the determination of the tax are reserved for the main proceedings on the merits. In casu affirmation of the tax hazard, since the unpaid liabilities of the claimant have reached a threatening level in relation to his own resources and there is a risk that the tax claim will not be paid.
The BStP issue March 2019 is available here.
