Intercantonal double taxation ban
The intercantonal double taxation ban (also the ban on intercantonal double taxation) is a Swiss constitutional principle under Swiss tax law.
Due to the federal structure of Swiss tax law , it can happen that a matter would be subject to tax in several cantons. However, according to the federal constitution , double taxation of several cantons is prohibited.
basis
The prohibition of intercantonal double taxation is enshrined in Art. 127 Paragraph 3 Clause 1 of the Federal Constitution under the heading "Principles of Taxation". Sentence 2 also gives the federal government the authority and the mandate to take the necessary precautions. In addition, there is a rich federal court case law on this question . This was particularly necessary because the old Federal Constitution in Art. 46 Paragraph 2 instructed the legislature to enact provisions against intercantonal double taxation , but the latter never exhausted this competence.
A double taxation in accordance with the Federal Constitutional is present if the same control subject and the same control object in the same period ( control period ) of two or more Canton be taxed. There is no double taxation, for example, if the sole shareholder is taxed in one canton and the stock corporation is taxed in another, if a person has to pay income tax in one canton and property gains tax in another , or if the tax affiliation changes as a result of a move.
Collision rules
Since, as mentioned, the Swiss legislature had never enacted a law on intercantonal double taxation despite the constitutional authorization , the Federal Supreme Court specified the content of the ban on a directly applicable constitutional law in more than a century of case law. In addition, it has set up conflict-of-law rules that assign tax sovereignty to a single canton. A distinction is made between current and virtual double taxation.
Current double taxation
A current double taxation occurs when a taxpayer for a control object in same period in more is taxed as a canton. This can occur in terms of time as well as factual.
A factual collision exists if a taxpayer is economically part of several cantons and is therefore subject to limited tax liability in several cantons. This is particularly the case for transactions with several permanent establishments or for natural persons who still own property outside of their main tax domicile. If such a situation exists, the tax must be divided among the cantons in the sense of an inter-cantonal tax allocation, which can be done on the basis of turnover or employees. The repartition value is intended to remedy the differences in the valuation of real estate in the individual cantons.
A temporal collision is given when a control subject within a control period of the control country substituted. The question arises as to whether the canton of departure or arrival is entitled to tax and to what extent.
Natural persons are subject to tax in the canton in which they are domiciled at the end of the tax period.
In the case of legal persons , a distinction is made as to whether their economic or personal affiliation has changed. In the first case, the canton entitled at the end of the tax period is also entitled for the entire tax period, whereas in the second case a temporal division ( pro rata temporis ) is made between the two cantons.
Virtual double taxation
In its extensive case law, the Federal Supreme Court has determined which canton is exclusively responsible for which tax. It was based on the personal and economic affiliation of the taxable person. Employed income, for example, is taxable at the place of residence, assets and income from real estate at the same location and business income at the place of work. The Federal Supreme Court also accepts unauthorized double taxation if an unauthorized canton levies a tax for which it would not be responsible, even if the responsible canton itself does not levy any tax. A ( virtual ) double taxation (also double taxation in thesi) also exists if the taxpayer is not taxed twice at all.
Disapproval prohibition
For procedural reasons, the Federal Supreme Court finally subsumed the prohibition of unfair treatment , which actually belongs to the fundamental right of equal rights, under the prohibition of double taxation. According to this principle, a taxable person must not be placed in a worse position - ergo higher taxed - simply because his main tax domicile is in another canton. This is particularly important in connection with the option to claim certain deductions or losses suffered in other cantons. It is not forbidden to put “own” tax subjects in a worse position than those outside the canton.
Legal protection
At the cantonal level, legal protection is based on the (26) cantonal procedural codes . At the federal level, double taxation between cantons can be objected to first with an administrative court complaint ( Art. 31 Administrative Court Act) at the Federal Administrative Court and then with a single complaint in public law matters ( Art. 82 ff. Federal Supreme Court Act) before the federal court. If the complaint to the Federal Supreme Court is not open, a subsidiary constitutional complaint ( Art. 113 ff. Federal Supreme Court Act) can be filed. In addition to natural and legal persons, cantons can also invoke the prohibition of double taxation if a canton that is not responsible has levied "their" tax. Such claims can be raised with an action before the Federal Supreme Court ( Art. 120 Para. 1 lit. b Federal Supreme Court Act).
Individual evidence
- ↑ Fabian Petrus: Intercantonal tax elimination: The elimination of real estate in private assets March 27, 2015
- ↑ Art. 4 Federal Act on the Harmonization of Direct Taxes of the Cantons and Municipalities (StHG) of December 14, 1990, portal of the Swiss government, accessed on August 12, 2018