In March 2018 and June 2018, the Federal Supreme Court issued two rulings regarding tax sovereignty and the determination of the tax domicile in an intercantonal settlement, thereby confirming its previous jurisprudence.
Judgment of 16 March 2018 - BGer 2C_580/2017
X, an ordinary professor at the University of Fribourg, lives in a rented apartment in the same town because of his appointment to the University. Originally, X comes from the Canton of Ticino and owns a property there. As X has no family, he and his mother live together in said house. In May 2012, X was asked by the Cantonal Tax Administration of the Canton of Fribourg to complete a questionnaire concerning the deter-mination of the tax domicile under intercantonal conditions. X stated that he spent 180 days a year working in the Canton of Fribourg and the rest of the year in particular on weekends and holidays in the Canton of Ticino. X also stated that he upheld his familial relations and friendships in the Canton of Ticino. In 2012, the Cantonal Tax Administration of Fribourg was satisfied with the answer and thus recognised X's tax domicile in the Canton of Ticino. In May 2014, the same authority asked X whether the situation in 2012 was still the same, which Y affirmed.
In October 2015, the Cantonal Tax Administration of the Canton of Fribourg changed its previous position and decided to fix the tax domicile in the Canton of Fribourg. X did not agree with this and lodged an objection and an appeal on the grounds that his main place of residence and centre of life was in the Canton of Ticino. He referred to several indicators which would justify an assignment to the Canton of Ticino: weekly return to Ticino, the work there as an expert in a school and on the radio once a week, regular visits to his elderly mother, memberships of various institutions and the fact that X consults doctor, dentist and physio-therapist in the Canton of Ticino.
All these arguments did not help X - the Cantonal Court dismissed the appeal as the last cantonal instance, whereupon X appealed to the Federal Supreme Court to fix the tax residence in the Canton of Ticino.
Judgment of 6 June 2018 - BGer 2C_296/2018
A, 37 years old, single, resident under civil law in the Canton of Valais, has been registered as a weekly resident in the Canton of Zurich since October 2008. She works there as a gainfully employed clerk in the commercial sector. Since 2013, she has had her own apartment in the Canton of Zurich. Irrespective of this, she always kept her own room in her parents' house in the Canton of Valais. For the tax year 2015, the Zurich Tax Office issued a domicile order for the Canton of Zurich.
A did not agree with this and filed objections, appeals and complaints to the respective court instances. Particularly the Administrative Court of Zurich based its reasoning for tax affiliation to the Canton of Zurich on a presumption established by practice: This means that the tax domicile is at the place of work if an unmarried person over thirty years of age has already spent more than five years in the corresponding cantonal territory. In the opinion of the Administrative Court, the affected A did not succeed in overturning this presumption. The last cantonal instance protected the domicile order of the cantonal tax authorities, which is why A appealed to the Federal Supreme Court on 11 March 2018.
Considerations of the Federal Supreme Court
Due to the identity of the matters in dispute, legal issues and considerations of the Federal Supreme Court, the subject matter of these two decisions is dealt with together. The residence under tax law is defined analogously to the Civil Code as «the place with the intention of permanent residence». If a person has several such places, the centre of the living conditions must be determined. Only objective criteria are per-mitted when determining the centre of a person's life. The subjective feeling of the taxpayer is not relevant.
If a person alternates between two different places, such as the place of residence and the place of work, the tax domicile is at the place where the taxable person can prove the closer relationship, i.e. the centre of living conditions. The Federal Supreme Court differentiates in its assessment between married couples/ cohabiting couples/ registered partners and single/ divorced/ widowed persons:
- In the case of married or cohabiting persons, a closer relationship with the place of residence of the family is generally assumed. This also particularly applies if the taxpayer is resident
at his place of work and does not constantly return to the family residence. In tax terms, the taxpayer's place of residence is usually the family's place of residence. In exceptional cases,
however, the overall circumstances of the individual case may also justify the tax residence at the place of work.
- In the case of single/ widowed/ divorced persons, this is basically to be considered in the same way. However, the Lausanne judges are of the opinion that the relationship with parents, siblings and/or friends is regularly less close than the relationship with a spouse/ cohabiting partner/ registered partner and children, if present. For this reason, the relationship to the place of work is brought to the foreground if the employment relationship (and thus the stay outside the canton) lasts for more than 5 years and the person concerned has reached the age of 30. In the opinion of the Federal Court, a presumption then applies in favour the place of work as the centre of life. The reversal of this presumption is burdened with high hurdles. The taxpayer must demonstrate that he returns to the place of residence of the parents/ siblings the majority of the weekends, maintains particularly close ties with these persons and has other extensive social and personal connections with this place.
In the two cases at hand, both obligated persons only had parents/ siblings in their canton of origin and not spouses. Both X and A were already over 30 years old and had been at their respective place of work for more than 10 years. Thus, the presumption described above could be applied to both cases.
Complainant X was unable to prove that he had no ties to his place of work, as he had contacts with other professors, assistants and other employees of the university. In this context, it did not help that the complainant worked in Ticino on a weekly basis, always returned to Canton Ticino on weekends, was a member of various organisations in Ticino and provided support to his elderly mother there. In the opinion of the Federal Court, the contacts and links with the canton of origin Ticino were not sufficiently strong to refute the presumption in question. X had his centre of life and therefore his tax residence in the Canton of Fribourg - at his place of work.
Complainant A was also unable to convince the Lausanne judges. She tried to overturn the presumption of the Federal Court by means of bank statements, electricity bills, confirmations from her parents, the Samaritan Association and the Tambourine and Pipe Association, without success. A could not sufficiently demonstrate that she returned to the family canton Valais on most weekends. Similarly, participation in local and communal activities did not, in the view of the judges, lead to the conclusion that the complainant was tax resident in the Canton of Valais. The taxpayers' ties to the Canton of Valais proved to be too weak to allow the presumption of the Federal Court to be successfully refuted. A was assessed in Zurich, at her place of work.
With both judgments, the Federal Supreme Court confirmed its constant practice of presuming tax domicile at the place of work for the above-mentioned category of persons.
For the purpose of practicability, it is arguably indispensable to make such assumptions. Nevertheless, the case law of the Federal Supreme Court contains significant problems. Only in the rarest cases and with the least probability of success can a person covered by this presumption refute the assumption of the Federal Supreme Court that the centre of their living conditions is not at their place of work. This applies even if there are numerous indicators and connections in favour of the canton of origin.