Collective investment schemes with real estate: Selected issues in the real estate transfer tax

Properties are registered in the name of the fund management company in the land register. The fund management company must be a public limited company with its registered office and head office in Switzerland. When properties are transferred from fund management company A to fund management company B, the properties belonging to the same real estate fund are newly registered in the name of fund management company B in the land register. Under civil law, this is therefore a change of ownership. From a formal point of view, it could therefore be concluded that there is a change of ownership that gives rise to tax. However, from an overall or economic point of view, the change of fund management does not trigger a change of ownership tax.

The transfer of real estate belonging to an investment fund from one fund management to another must be distinguished from the transfer of real estate from one (contractual) real estate fund to another (contractual) real estate fund with the same fund management but with different investors. Under civil law, this process does not involve a transfer of ownership or a change of ownership. In economic terms, however, a change of ownership from one real estate fund to the other or from the investors of one real estate fund to the investors of the other real estate fund is to be affirmed in view of the fiduciary ownership of the fund management. However, a prerequisite for the levying of the transfer of ownership tax is that the canton in question recognises not only the facts of the change of ownership under civil law but also those of the economic change of ownership and has a corresponding legal basis.