Facts
[A.] and [B.] acquired a property in the municipality of [U.] on December 1, 2000. On November 20, 2002, they established a separate and permanent building right on this property and distributed shares of it to third parties. On April 28, 2003, they sold their condominium unit and two parking spaces to [C.].
The Real Estate Tax Commission of the municipality of [U.] considered the establishment of the building right on November 20, 2002 as the last relevant transfer and levied a speculation surcharge of 50% on the real estate capital gains tax.
Considerations
The Federal Supreme Court overturned the decision and remanded the case to the Real Estate Tax Commission for a new assessment. It concluded that for the calculation of the gain and the duration of ownership in the sale of a building right property in co-ownership (condominium), the last actual sale should be the basis. The establishment of the building right may not trigger real estate capital gains tax, but is to be considered a transfer of ownership within the meaning of § 219 para. 2 of the Tax Act of the Canton of Zurich.
The Federal Supreme Court justified this by stating that the establishment of the building right involves a division of pre-existing property rights. A large part is transferred to the acquirer of the building right, while the landowner retains the remainder. From the perspective of…