Partial Upholding of the Constitutional Appeal against a Cantonal Tax Lien

Facts

X AG purchased a property from Z in 1990 and was later assessed by the municipal tax administration of Y for a liquidation gain of CHF 826,400 with a liquidation gain tax of CHF 141,908.65. The municipality then asserted a statutory tax lien on the property. X AG challenged the lien order by way of a constitutional appeal, as it was of the opinion that no lien existed for the liquidation gain tax. The Federal Court partially upheld the appeal. It stated that a cantonal tax lien for liquidation gains is only permissible to the extent that the gain is attributable to an increase in the value of the property, but not to the extent that it is attributable to other factors such as depreciation or the taxpayer's own work. Since the tax authorities had not determined the portion attributable to the pure increase in property value with sufficient precision, the lien order is contrary to federal law in this respect. The judgment of the Administrative Court was therefore set aside, and the cantonal authorities were left to issue a new or amended lien order for the part of the tax claim that is compatible with federal law.

Considerations

The Federal Court first stated that the constitutional appeal and not the appeal is the correct legal remedy, as the question of the compatibility of a cantonal tax lien with federal civil law does not constitute a civil law dispute.

According to the case law of the Federal Court, cantonal tax liens are only permissible if the tax claim has a special relationship to the encumbered property. This is the case if the tax amount is based solely on the increase in value of the property, but not if it is attributable to other factors such as depreciation or the…