Facts
The City of Zurich had registered statutory liens in the land register for real estate capital gains taxes due upon further sales of a property. These liens were given priority over all other liens by the debt collection office and the District Court of Zurich. The holders of the mortgage deeds for CHF 200,000 and CHF 100,000 (City-Umbau AG and Teno AG) subsequently filed a claim to have their liens ranked behind the tax lien claims. The High Court of the Canton of Zurich upheld the claims and ruled that the tax lien claim of the City of Zurich must be ranked behind the plaintiffs' mortgage deeds. The City of Zurich then appealed to the Federal Supreme Court.Considerations
The Federal Supreme Court held that Art. 836 of the Swiss Civil Code (ZGB) contains only a negative formal requirement and grants the cantons the authority to legislate on tax law matters, including the question of what security the cantonal and municipal tax authorities can claim for tax claims. Art. 836 ZGB does not set any limits on the value or rank of cantonal statutory liens. Even though the real estate capital gains tax is an income tax that is linked to the fact of the sale of a property, it has a direct relationship to the mortgaged property, so that its subsumption under Art. 836 ZGB is possible. The fact that the tax amounts can be greater than the amounts usually incurred for public services does not change this,…