2022

Olivier Margrave

Moritz Seiler

Assessment procedure

Olivier Margraf

Moritz Seiler

Case 1: Dropped from the tax register

1. facts of the case

Mr Keller was resident abroad until 20.11.2019. On 21.11.2019, he registers with his new municipality of residence, Frauenfeld. The residents' registration office does not process the corresponding registration correctly; therefore, there is no transfer to the tax register. When Mr Keller inquires at the tax office in March 2020 about the lack of a tax return, he is told that he is not entered in the tax register, which is why he does not receive a tax return. Mr Keller is happy about this and does nothing further.

Questions

Can Mr Keller sit back and relax after the negative answer from the tax office?
Is the situation to be assessed differently if the canton of Thurgau did not draw attention to the tax declaration obligation by means of a "public announcement" within the meaning of Art. 124 para. 1 DBG?

Case 2: Limitation

1. facts of the case

The Grübler couple filed their 2009 tax return on 17 January 2011. They appointed Treuhand & Beratung AG as their tax representative.

By registered letter dated 13 November 2015, the tax office notified the interruption of the limitation period with regard to the 2009 tax period. This letter was sent to the tax representative. In addition to the prospective assessment, it contained the following information: the registration number, the municipality of residence, the types of tax and the tax periods (2009 and 2010). However, the jointly taxed couple was not mentioned by name. The 2009 assessments were made by order of 19 January 2017. The couple raised the plea of limitation for the first time before the Tax Appeal Court.

Questions

With which act was the first interruption of the limitation period made?
Does the letter in question satisfy the requirements for a legally sufficient interruption of the limitation period?
When is the plea of limitation to be raised at the latest?
Does an assessment that has been issued despite the fact that the statute of limitations for assessment has expired have any legal effect at all?

Case 3: Participation and investigation I

1. facts of the case

The Sutter spouses lived in a 4.5-room flat in Frauenfeld/TG until 30 June 2021. As of mid-2021, they will rent a single-family house in Altendorf/SZ. They continue to rent the flat in Frauenfeld because they want to spend the occasional weekend there. They also own a holiday home near Nice/F, which they bought in the 1980s for the equivalent of CHF 300,000 and have since always declared at this value for wealth tax purposes. For income tax purposes, they have declared an imputed rental value of CHF 10,000.

For the year 2022, both KStV Thurgau and KStV Schwyz send the Sutter spouses a tax return form. The Sutter spouses complete the Schwyz form and submit it on time. The Sutter spouses ignore the Thurgau form.

In autumn 2022, the KStV TG reminds the Sutter spouses to submit their tax return. As they do not feel like filling out the form, the Sutter spouses send the KStV TG a copy of the tax return completed in the canton of Schwyz instead. KStV TG then sends them a questionnaire with questions about their place of residence and their income and assets.

Meanwhile, the responsible tax commissioner of the CTA Schwyz has doubts about the correctness of the market value and the imputed rental value of the holiday home of the Sutter spouses, since his uncle recently also bought a holiday home in the south of France and paid several million for it. He asked the Sutter spouses for information regarding the current market value and the current imputed rental value of the holiday home.

Facts variant

The flat in Frauenfeld is owned by the spouses.

Questions

Do the Sutter spouses in the canton of Thurgau have to participate in the proceedings?
Is the action of the Sutter spouses in the canton of Thurgau correct?
Who must prove where the Sutter spouses reside? Who bears the burden of proof for what?
Do the spouses have to provide information to KStV Schwyz about their French property?
How will KStV Schwyz proceed if the Sutter spouses either do not provide up-to-date information or it has doubts that the information is correct?

Case 4: Participation and investigation II

1. facts of the case

Immo-AG is domiciled in the Canton of Fribourg and holds an investment property in the Canton of St. Gallen. It is represented in tax matters by attorney-at-law Loosli. The shares in Immo-AG are held by the Liechtenstein Zorro Foundation. In February 2022, the KSTA St. Gallen requests Immo-AG to provide information on the beneficial owners of the property in the 2020 tax period. Immo-AG refuses to provide this information because it believes that it is not relevant for its assessment.

Facts variant

The Zorro Foundation has granted Immo-AG a loan of CHF 1 million and declared a subordination for it in 2020. The KSTA St. Gallen is considering offsetting this loan with Immo-AG for profit tax purposes as a restructuring subsidy.

Questions

What can KSTA St. Gallen do to get Immo-AG to provide information?
What has to be considered with regard to delivery?
Can the Immo-AG demand that the KSTA establish the existence of the duty to provide information in an order before issuing a penalty?
Does the Immo-AG have to provide the information?

Case 5: Right to be heard / Duty to state reasons

1. facts of the case

Reto Dubler claims the following deductions, among others, in the 2021 tax return:

Pillar 3a contribution: CHF 5,500
Further training costs: CHF 3'200
Voluntary contributions: CHF 1'100

These three deductions are not substantiated by corresponding receipts or certificates, so tax commissioner Werner Beinhart deletes them from the assessment. There is no indication or justification for the corresponding tax correction on the 2021 assessment ruling.

Questions

What are the elements of the right to be heard?
Does the assessment order in question satisfy the obligation to state reasons?
What are the legal consequences of an inadequately substantiated assessment order?

Facts variant

The deviations from the self-declaration are listed individually in the assessment ruling:

Question

What is the legal situation now?

Case 6: Inspection of files

1. facts of the case

The shareholder board of Geier AG consists of John Geier with a 90% stake and his brother Bruno Geier, who holds a 10% stake. The brothers have been at odds for years. John therefore keeps Bruno out of all business matters. Bruno does not hold any functions for Geier AG.

Bruno requests access to the detailed valuation of securities according to SSK-KS No. 28. The reason given for the request is that he needs to know the tax value of Geier AG in order to be able to fill out his tax declaration (wealth tax) correctly.

Questions

Which persons may be granted access to the files of a legal person?
How do you assess the present constellation?
What legal remedies are available to Bruno Geier to assert his right to inspect files?

Facts variant

Bruno Geier is entered in the commercial register as a member of the Board of Directors with sole signature.

Questions

What is the legal assessment to be made?
In the tax files there is also a denunciation by John Geier's ex-wife about the non-recording of taxable transactions deposited in a private bank account in the name of John Geier. Bank documents are attached to the denunciation. What is to be done with these documents when inspecting the files?

Case 7: Lapel

1. facts of the case

Kevin Tüchtig is the managing director of Better World AG, whose sole shareholder Ralf Bornhausen wants to cut back a bit in the future. For this reason he wants to transfer 40% of the shares to Kevin. Kevin can acquire these at a value that roughly corresponds to the value according to SSK-KS No. 28. The assessment authority of Kevin's canton of residence considers this succession arrangement to be an "employee-like" construct. Therefore, Kevin Tüchtig is requested to sign a reverse that allows the transfer of the shares without tax consequences, provided that Kevin does not sell these shares at a higher value within 10 years. In this case, income tax would be levied on the difference between the nominal value and the sale price, namely at the time of sale. Kevin feels somewhat taken aback by this solution, but signs the reversal. 6 years after the purchase of the 40% block, a competitor approaches Kevin and Ralf and buys the entire block of shares at a value determined on the basis of a common valuation method. The assessment authority taxes the capital gain realised by Kevin through the sale of his 40% package.

Facts variant

Ralf sells all shares to Invest Holding AG. Beforehand, a ruling is obtained that ensures tax neutrality with regard to the indirect partial liquidation. The ruling also states that there is no substance necessary for operations. One year after the transaction, Better World AG distributes a substantial dividend to Invest Holding AG.

Questions

What is a lapel?
Is a lapel admissible?
How do you assess the basic facts of the case?
How do you assess the facts of the case? Does the ruling have a binding effect?

Case 8: Proceedings concerning withholding tax refund

1. facts of the case

Margrith Stein-Reich has been living in the canton of Thurgau since 2021. With the 2021 tax return, she also applies for a refund of the withholding taxes charged on her investment income with the list of securities submitted at the same time. Ms Stein-Reich is somewhat irritated to learn that an amount is paid to her as a withholding tax refund before the 2021 assessment notices are served, although this amount differs from her application. There is no reference to the withholding tax refund on the assessment notices opened in May 2022.

Facts variant

Ms Stein-Reich lives in Basel-Stadt.

Questions

Is a decision on the refund of withholding tax prescribed by federal law?
How should the Thurgau approach be evaluated?
How should the Basel-Stadt solution be assessed?

Case 9: Representation relationships and opening deficiencies

1. facts of the case

Mr and Mrs Meier live in Olten/SO. On their tax return for 2020, they have indicated Mr Angehrn from the TreuTax GmbH trust office as their representative.

The KSTA Solothurn assesses the spouses for the tax year 2022 with an assessment ruling dated 22 April 2022. It sends this ruling to the spouses on the same day by A Mail plus. According to Track & Trace, the postman places the ruling in Mr and Mrs Meier's letterbox on the following day (Saturday, 23 April 2022). At this time, they are on a long trip through Asia. On their return on 15 July 2022, the spouses find the decree in their letterbox and instruct Mr Angehrn to lodge an objection immediately, which he does the following day.

Facts variant 1

Instead of having an objection filed immediately, the spouses do nothing for the time being after their return on 15 July 2022. They are of the opinion that the KSTA Solothurn must correct its mistake itself. It is not until 14 December 2022 that they contact Mr Angehrn. He raises an objection on their behalf the following day.

Situation variant 2

The KSTA Solothurn sends the assessment order to TreuTax GmbH (c/o Mr Angehrn). TreuTax GmbH maintains a "virtual" post office box at the post office in Olten, but does not indicate this on its business correspondence. According to an agreement with the Post Office, TreuTax GmbH receives the contents of the "virtual" P.O. box daily from Monday to Friday. However, according to the agreement, TreuTax GmbH does not receive items received on Saturday until Monday, because no one is present in the TreuTax GmbH offices on Saturday.

The assessment ruling is received by the post office in Olten on Saturday, 23 April 2022, which is noted on the "Track & Trace" statement. On Monday, the post office empties the "virtual" post box and sends the contents to TreuTax GmbH. Accordingly, Mr Angehrn does not take note of the assessment until 25 April 2022. He lodges an objection on behalf of the Meier spouses on 25 May 2022 (postmark).

Facts variant 3

Due to an IT error, the assessment order sent to Mr Angehrn bears the date 23 May 2022 (instead of 23 April 2022). According to the instructions on appeals, the period for lodging an objection is 30 days. The last day of the period is 22 June 2022 - again due to the IT error. Mr Angehrn submits the objection on 10 June 2022.

Situation variant 4

During their trip to Asia, Mr and Mrs Meier both fall so seriously ill that they have to be admitted to the intensive care unit of a hospital in Malaysia on 10 May 2022. Mr Meier dies there on 30 May 2022. Mrs Meier survives and is able to leave the hospital on 5 June 2022.

As early as March 2022, the spouses terminated the representation relationship with Mr Angehrn because they now want to be looked after by Mr Schaaf, a lawyer. Because no one informs the KSTA Solothurn of this, the KSTA nevertheless sends the assessment order to Mr Angehrn. He does not reach the two spouses before the deadline for objections and therefore does nothing. After her return, Mrs Meier mandates lawyer Schaaf to file an objection after all (with a request to restore the deadline), which he does immediately in a letter dated 17 June 2022.

Situation variant 5

After they have already terminated the mandate relationship with Mr Angehrn in December 2021, both Mr and Mrs Meier die on 18 April 2022. The KSTA Solothurn nevertheless sends the assessment order to Mr Angehrn on 24 April 2022. The two children of Mr and Mrs Meier, who form the community of heirs of Mr and Mrs Meier themselves, do not learn of this.