Entitlement to Appeal of the Cantonal Tax Administration in Tax Matters

Facts

The tax administration of the Canton of Bern assessed the [E. AG] for the cantonal and communal taxes of the tax period from October 1, 2001 to September 30, 2002. The municipal community of Bolligen/BE filed an objection to the tax allocation plan and claimed that the entire taxable profit in the Canton of Bern should be attributed to the place of business in Bolligen/BE. The tax administration rejected the objection, and the municipal community of Bolligen/BE filed an appeal with the Tax Appeals Commission of the Canton of Bern. The latter annulled the objection decision and referred the files back to the tax administration for the conduct of the objection procedure. The tax administration filed a complaint with the Administrative Court of the Canton of Bern, which did not consider the complaint. The tax administration of the Canton of Bern then filed a complaint in public law matters with the Federal Court.

Considerations

The Federal Court examines its jurisdiction and the requirements for consideration of its own motion and with free cognition. The tax administration of the Canton of Bern bases its entitlement on Art. 50 para. 3 in conjunction with Art. 73 of the Tax Harmonization Act (DTHA) and Art. 89 para. 2 lit. d FSCA. The tax administration can claim before the Federal Court that the Administrative Court failed to consider its complaint in violation of Art. 50 para. 3 DTHA or Art. 201 para. 2 StA/BE.

The Federal Court considers that the tax administration can also derive its entitlement to appeal from Art. 111 para. 1 FSCA in conjunction with Art. 73 DTHA. The cantonal authorities may not restrict the right to appeal more narrowly than it is defined for the appeal to the Federal Court. The tax administration is authorized to file a complaint with the…