Facts
The Federal Tax Administration (FTA) lodged a complaint against the judgment of the Cantonal Tax Court of Solothurn of 25 October 2010. The subject of the proceedings was direct federal tax 2008. The FTA had qualified the profit share of [Y.] from the sale of a property as income from self-employment, while the tax court considered it a private capital gain.
The construction company [G.] , in which [Y.] was a participant, had acquired the property in 1970 and sold it with a profit in 2008. The FTA argued that the construction company had operated a commercial business and that the property had therefore constituted business assets. The respondents ([Y.] and her husband) argued that the property had been transferred to private assets after development and that the sale proceeds were therefore tax-free.
Considerations
The Federal Supreme Court examined whether the sale of the property should be qualified as income from self-employment or as a private capital gain. It found that the construction company had operated a commercial business when constructing the building and that the property had therefore constituted business assets. The fact that the property had been held for a longer period did not contradict the assumption of self-employment.
The court ruled that the respondent had to accept the self-employment exercised within the framework of the company, even if she was not a founding…