Cash pay-out from pension provision due to self-employment is scrutinised in detail

In 2006, a gainfully employed person (hereinafter referred to as "taxpayer") also bought into a pension foundation in order to finance early retirement.

As a result of entering unemployment, the taxpayer transferred the pension capital to the account of a vested benefits foundation. In 2009, the taxpayer was able to disburse the capital saved by taking up an independent activity as an asset manager in the form of a sole proprietorship in the canton of Aargau. Prior to the payment, the taxpayer and his family established a new residence in Graubünden. A few months later, but in the same year, he returned to his old domicile in the canton of Aargau. The Canton of Graubünden assessed the capital payment in September 2010 with a special tax for the Confederation, canton and municipality. This tendency grew into legal force. In February 2013, the tax authorities of the canton of Aargau assessed the same capital payment with a special tax for the Confederation, the canton and the municipality. The taxpayer raised objections against this assessment. In August 2013, the same tax authority in the canton of Aargau assessed the taxpayers for the ordinary cantonal and municipal tax of 2009. This assessment included the capital payment as a regular income, since the Aargau tax authority concluded that no independent activity had taken place in 2009 and therefore no special assessment was permissible for the capital payment. The legal remedies brought against this assessment were unsuccessful at all cantonal levels in the canton of Aargau.

The appeal to the Federal Supreme Court is directed against the ordinary assessment of the capital payment by the Canton of Aargau and against the double special assessment of the capital payment by the Cantons of Aargau and Graubünden due to a violation of the intercantonal prohibition of double taxation.

Is there a self-employed activity?

In its decision of 9 December 2016 (BGE 2C_204/2016), the Federal Supreme Court once again dealt in detail with the question of when independent activity can be assumed in terms of tax law. It confirmed the hitherto known definition that each individual case has to be assessed individually. The following factors form the framework for the individual case assessment: "own risk", "use of production factors labour and capital", "freely chosen work organisation", "permanent or temporary, full-time or part-time" and "intention to make a profit". In its analysis, the Federal Supreme Court concluded that the taxpayer did not engage in any self-employed activity between 2009 and 2013 and that the privileged taxation of capital withdrawal from the pension fund was therefore not permissible. The Federal Supreme Court based its decision on the fact that the taxpayer, as an independent asset manager, has consistently reported losses between 2009 and 2013 and has therefore failed to meet the criterion of the intention to make a profit.

As a result of this decision, the assessment of the special taxation of the capital withdrawal of the Canton of Graubünden was abolished and the tax authorities were instructed to repay the taxpayer the amount of tax already paid.

Possibility of reimbursement to the pension fund

After clarifying the question of the canton of Graubünden's independence and (non-)competence, the Federal Supreme Court examined the question of whether the capital payment is subject to ordinary taxation in any case due to the negation of the self-employed activity and the thereby caused non-application of special taxation for the capital payment. In this point, the Federal Supreme Court took up the relevant references from an earlier Federal Court ruling, where it was stated that the taxpayer has the option of reimbursing the capital to the pension fund in the event that the capital withdrawal from the pension fund cannot be settled for tax purposes by special taxation. The Federal Supreme Court confirmed this approach in this ruling and instructed the tax authorities to give the taxpayer the opportunity to reverse the withdrawal of capital. According to the Federal Supreme Court, this repayment is open to the obligated party until the end of the case, even if he did not hold out the prospect of this solution in the course of the assessment procedure.