Tax rulings - Swiss success model at risk?
Tax rulings are omnipresent in Swiss tax consulting. With the StAhiV, they have been incorporated into Swiss legislation for the first time as of 1 January 2017 and are referred to there as "preliminary tax assessments", about which other states must be informed in certain situations. Recently, the courts have also been increasingly concerned with questions relating to tax rulings.
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1. tax ruling vs. tax treaty
The legal basis for the validity of these tax rulings or advance tax assessments is, of course, much older than the StAhiV and results from the principle of good faith protected by Article 9 BV. Consequently, a ruling can only be effective if the requirements of the protection of legitimate expectations under Article 9 BV are met. For example, on the basis of the information (the ruling) the taxpayer must have made a disposition which cannot be reversed without disadvantage. Therefore, subsequent rulings generally have no legal effect.
Even an obviously incorrect ruling cannot provide legal protection. Rather, it is a tax treaty, which is an invalid administrative law treaty for lack of a legal basis.
A ruling can then only have effects with regard to the concrete facts of the case. The taxpayer is responsible for the completeness of the facts. In my opinion, the tax authorities have no duty to investigate this - a principle which was unfortunately called into question by the Administrative Court of Zurich in its ruling of 25 August 2010 (SB 2009.104).
2. recent case law
Rulings have occupied the courts a lot lately - after decades of searching in vain for the word "ruling" in court decisions. The lack of experience in dealing with rulings has led to strange blossoms in the jurisdiction of federal courts. Thus, in the memorable decision BGer 2C_708/2011 of 5 October 2012, the Federal Supreme Court actually ruled that a ruling on direct federal tax had no effect because it was not signed by the FTA. I think the federal court itself noticed It did not print the decision in question in the official collection and corrected the verdict at the first available opportunity (BGer 2C_529/2014 of 24 August 2015).
3. protection of legitimate expectations of the citizen vs. the fiscal interest of the State
In certain rulings, the Federal Supreme Court requires a balance to be struck between the interests of the citizen in the protection of confidence and the interests of the state in the correct application of the law. A strange formula which at least has never been ratio decidendi and is in need of interpretation. In my view, it is clear that the fiscal interest of the State must never outweigh the protection of legitimate expectations.
In its ruling BGer 7.6.2019, 2C_1114/2018, Erw. 6 of 7 June 2019, the Federal Supreme Court now even states in Erw. 6 that in a case which is qualified as tax avoidance by the tax office or court, one cannot rely on a ruling: This statement of the Federal Supreme Court is of course clearly (obviously?) incorrect and must therefore be rejected in all severity. What was probably meant was that the ruling could not be invoked in the specific case because the elements in the facts which led to the assumption of tax avoidance were not presented in the ruling (see point B of the Federal Court's judgment). The (accident-related) statement of the Federal Court must therefore not be generalised.
4. the tax authorities also have an interest in tax rulings
As there are currently other interesting cases pending before the Federal Supreme Court on the validity of rulings, it remains exciting to see in which direction the relevant case law will develop.
It is undisputed that rulings are an essential part of the Swiss success model. The tax authorities have a greater interest in a reliable and functioning rating system as tax advisors, as this enables them to ensure an appropriate and, above all, legally equal assessment with comparatively little effort. It is therefore to be hoped that the highest Swiss court is aware of the responsibility it bears in this regard, will continue to uphold the protection of confidence and will place its trust in our tax authorities.
Stefan Oesterhelt. When does a Ruling become a tax treaty, ST 203, 846 ff.
Judgment of the Zurich Administrative Court of 25 August 2010 (SB 2009.104)
Stefan Oesterhelt. Binding effect of cantonal tax rulings vis-à-vis the FTA. StR 2013, 188 ff.
Stefan Oesterhelt. Competent authority for issuing rulings. StR 2015, 828 ff.