Facts
The [A. AG] , successor in title to [B. AG] , a pure real estate company, sold two plots of land to the [E.] Foundation in 2011. The purchase agreement contained a right of rescission clause, which allowed the buyer to rescind the contract until January 23, 2012. The taxpayer did not book the gross profit from the purchase agreement in the contract year 2011, but in the following year 2012. However, the Tax Office of the Canton of Lucerne taxed the taxpayer for the tax period 2011 and allocated the profit of CHF 4,600,000 to this period.
The taxpayer appealed to the Cantonal Court of the Canton of Lucerne, which dismissed the appeal. The taxpayer then appealed to the Federal Court and requested that the contested decision be set aside and the profit achieved be allocated to the subsequent period.
Considerations
The Federal Court examined the appeal and came to the conclusion that the realization of the capital gain did not occur until 2012. The Court found that the purchase agreement was subject to a right of rescission clause, which allowed the buyer to rescind the contract until January 23, 2012. This clause was to be qualified as a suspensive condition that stood in the way of the realization of the contract.
The Court pointed out that tax realization only occurs when the uncertainty about the fulfillment of the contract is eliminated. In this case, the uncertainty was only eliminated when the buyer waived the right of rescission. The Court therefore came to the conclusion that the appeal was justified and the case was to be referred back to the Tax Office of the Canton of Lucerne for re-assessment.
The Federal Court emphasized that the interpretation of the contract was to be carried out according…