Decision on the withholding tax assessment of a couple where both spouses are gainfully employed, taking into account the actual income of the foreign spouse and the dependent children

Facts

X., a Swiss citizen, was employed by the Swiss Confederation in 2014 as a customs officer. He is married and has three children. His wife also works as a border guard in France, with an annual net income of 23,166 euros. The family is domiciled in France. For the year 2014, X. was subject to a withholding tax of 17,190 CHF 60, as the C0 scale (double income without dependent children) was applied to him. X. contested this taxation, requesting that his wife's actual income be taken into account and that the three minor children be considered in the calculation of the applicable scale.

Considerations

The Federal Tribunal upholds X.'s appeal on two points

1. The structure of the C scale, which incorporates the foreign spouse's income in a lump-sum manner, leads to an overtaxation of the taxpayer when the foreign spouse has a low income. This is contrary to the principle of taxation according to economic capacity under Art. 127(2) Cst. As long as this overtaxation cannot be corrected by a subsequent correction requested by the taxpayer within the time limits,…