Assignment of Brokerage Fees in the Event of Cancellation and Replacement of a Brokerage Contract

Facts

The spouses X.-[Y.] were assessed for direct federal tax 2006 and cantonal and communal taxes 2006 by the Cantonal Tax Administration of Zurich. They lodged an objection against the assessment decision and the tax assessment, which was rejected. The appeal and the complaint lodged against this decision were partially upheld by the Tax Appeals Court of the Canton of Zurich. The complaints lodged with the Administrative Court of the Canton of Zurich against these decisions were partially upheld. The spouses X.-[Y.] requested the Federal Court to annul the contested decisions and to assess them with a taxable income of Fr. ... for direct federal tax 2006 and a taxable income of Fr. ... or a taxable wealth of Fr. ... for cantonal and communal tax 2006.

The subject of the dispute concerns the assignment of a brokerage fee received by [S. AG] , a company held by the spouses X.-[Y.] . The brokerage fee was earned for the brokerage of the sale of an investment company. The lower court had assigned the brokerage fee half to the spouses X.-[Y.] and half to [S. AG] .

Considerations

The Federal Court examines its jurisdiction and the prerequisites for admission ex officio. The appeal is directed against two final decisions of a last cantonal instance in a matter of public law. The appeal in public law matters is admissible.

The Federal Court applies the law ex officio and is not bound by the arguments presented in the appeal. It can uphold or reject the appeal for a reason other than the one invoked. The Federal Court clarifies questions of federal law with free cognition.

The subjective assignment of income and assets of natural persons is an unwritten element of the tax factual situation. The subjective assignment in tax law is in line with the civil law perspective, unless the law provides for an independent tax assignment rule or pursues an economic point of view.

The brokerage fee is earned according to Art. 413 para. 1 CO as soon as the target transaction has been concluded through the broker's brokerage or mediation. In tax law, income or yield is considered realized as soon as the taxpayer receives services or at least acquires a fixed legal claim to them, which they can actually dispose of.

The lower court established…