Facts
In the context of the bankruptcy of company T SA, the Bankruptcy Office of Z registered in the list of charges encumbering plot no. 1693 of the land register of Z a series of claims secured by a mortgage, including that of W, as well as the cantonal and municipal taxes from 1989 to 1993 and the sewer usage and municipal usage fees from 1992. However, the presumed amounts of the real estate capital gains tax in favor of the State of the Canton of Ticino (CHF ...) and the City of Z (CHF ...) were entered in the auction award minutes of February 14, 1994 under point 8 of the conditions of sale, which provides that the successful bidder must assume or pay them in cash without deduction from the auction price. On June 27, 1994, the Enforcement and Bankruptcy Chamber of the Court of Appeal of the Canton of Ticino, seized by W, deleted these taxes from the conditions of the auction sale.Considerations
The Federal Tribunal dismisses the appeal of the State of the Canton of Ticino. According to a literal interpretation of Art. 49, para. 1, let. b, of the Ordinance on Compulsory Realization (ORF), the claims that can be charged to the successful bidder without deduction from the sale price must exist before the auction. However, the real estate capital gains tax only arises with the auction, when a taxable profit is realized. Consequently, this tax is not part of the claims referred to in this provision and cannot therefore be charged to the successful bidder.
The Federal Tribunal sees no serious reasons to depart from this…