Facts
Until April 30, 2019, company [A. SA] was the management of the real estate investment fund [E.], which was reserved for qualified investors. This investment fund included several real estate properties, which [A. SA] managed on behalf of qualified investors, including four properties located in the canton of Fribourg. [A. SA] was registered in the land register with the indication that the properties belonged to fund E.
By contract dated December 10, 2018, [A. SA] transferred the management of fund [E.] to company [C. SA], effective May 1, 2019. In execution of this contract, by authentic deed dated June 19, 2019, [A. SA] transferred the aforementioned four properties to [C. SA], which was registered in the land register as the owner on June 26, 2019.
On October 16, 2019, the Land Registry of La Gruyère sent [C. SA] an invoice for transfer taxes of 741,150 CHF, calculated on a total market value of 24,705,000 CHF for the four properties concerned. By judgment of June 14, 2021, the Cantonal Court of the Canton of Fribourg confirmed this decision.
[C. SA] filed a public law appeal with the Federal Supreme Court against this judgment. The Federal Supreme Court dismissed the appeal.
Considerations
The Federal Supreme Court first recalled that the management of a contractual investment fund is the fiduciary owner of the properties placed in the fund, and not the investors who only have a claim in the form of a participation in the assets and income of the fund.
The Federal Supreme Court then examined C. SA's grievances. It rejected the grievance of violation of the principle of legality, considering that the applicable cantonal provisions on transfer taxes were sufficiently clear and precise.
Regarding the grievance of violation of economic freedom, the Federal Supreme Court held that the transfer taxes did not constitute special taxes on a particular economic activity, but indirect taxes on real estate…