Facts
X. is a German national and was subject to withholding tax as an employee in Switzerland in 2010. Until 20 November 2010, he was domiciled in the canton of St. Gallen, and thereafter in the canton of Schwyz. The tax authorities carried out a subsequent ordinary assessment and allocated the income and assets between the two cantons in proportion to the duration of the domicile.
X. filed a complaint, arguing that he is treated less favorably than a Swiss citizen in the same situation due to the regulation in Art. 38 Para. 4 StHG. The Federal Court upheld the complaint.
Considerations
The Federal Court stated that while the withholding tax does not directly refer to nationality, but to the residence status, this is irrelevant for Swiss citizens. This constitutes (direct or indirect) discrimination within the meaning of Art. 2 AFMP and Art. 9 Para. 2 Annex I AFMP.
The special regulation of Art. 38 Para. 4 StHG for the subsequent ordinary assessment of persons subject to withholding tax…