Partial Loss of a Leg as a Significant Disability for a Forestry Worker

Facts

X., born in 1961, a forestry worker by profession, suffered an accident in 1979 during forestry work, which resulted in the amputation of his right lower leg. Since then, he has been dependent on a prosthesis. Due to this disability, he did not reach the degree of disability of 40 percent required for a disability insurance (IV) pension and therefore did not receive a pension from the Swiss Federal Disability Insurance (IV). Since 1981, X. has been paying the military service replacement tax (today: military service replacement fee).

X. filed an objection against the assessment decision for the replacement year 1995 and demanded to be exempted from the replacement obligation in the future. He referred to the revised Article 4 paragraph 1 letter a of the Federal Act of June 12, 1959 on the Military Service Replacement Fee (WPEG), in force since January 1, 1995, and claimed that he met the requirements for exemption from the replacement obligation.

The cantonal military service replacement fee administration rejected the objection, as according to Article 1 paragraph 1 of the Ordinance on the Military Service Replacement Fee of August 30, 1995 (WPEV), a disability is only considered "significant" if it reaches the minimum degree of disability of 40 percent required for the granting of a pension from the Swiss Federal Disability Insurance (IV). X. did not reach this minimum degree of disability.

The Administrative Court of the Canton of Schwyz upheld X.'s appeal and referred the matter back to the military service replacement fee administration for a new decision. It considered that Article 1 paragraph 1 WPEV contradicts the law and is not applicable. The "significant physical or mental disability" within the meaning of Article 4 paragraph 1 letter a WPEG cannot be linked to the minimum degree of disability required for the granting of an IV pension.

Considerations

The Federal Supreme Court dismisses the appeal of the Swiss Federal Tax Administration.

The Federal Supreme Court states that the term "significant physical or mental disability" within the meaning of Article 4 paragraph…