Facts
Parties: Appellant (A.) against the Tax Administration of the Canton of Graubünden
Court: Federal Supreme Court, II. Public Law Division
Date: November 21, 2018
Main issue: Offsetting of taxable income and assets for the tax periods 2003 and 2004, particularly in connection with a benefit in kind, interest expense, cooperation agreement, and transfers.
Background: The tax administration assessed A. for the tax periods 2003 and 2004, with various amounts being offset as taxable income. A. filed an appeal against these assessments, particularly against the offsetting of a benefit in kind, which he considered a loan.
Procedural: A. argued that the assessment procedure should be suspended until a final decision in the tax criminal proceedings. He also complained about violations of his right to be heard, particularly regarding access to files and confrontation hearings.
Substantive law: The lower court and the tax administration based the offsetting on an alleged benefit in kind, which A. considered a loan. A. disputed the value of the participation and the justification for the offsetting.
Considerations
The lower court found that the U. participation was transferred by B. AG only in a fiduciary capacity and that its value was not 45 million francs but only 800,800 francs. These findings are not obviously incorrect and do not violate the right to be heard. The conditions for a benefit in kind pursuant to Art. 20 para. 1 lit. c DFTA are met, as B. AG did not receive adequate consideration for the payment of 45 million francs. The payment thus constitutes a benefit in kind that is to be offset as income from movable property for the appellant.
The alleged interest of 275,043 francs is not business-related expense and is to be offset accordingly. The appellant's argument that the loan should be qualified as a hidden capital contribution is not tenable, as there is no direct connection between the transactions. The lower…