Facts
The complainant [B.] was declared unfit for military service on 4 December 2000 and had performed a total of 104 days of credited military service up to that point. He was assessed for the military service replacement tax for the year 2005 with a taxable income of Fr. 8'500.--. After deducting the days of service performed, the military service replacement tax amounted to Fr. 204.--. The complainant argued that the replacement tax, which is only provided for men, is discriminatory and violates the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Tax Appeals Court of the Canton of Aargau dismissed the complaint, as the prohibition of discrimination under Art. 14 ECHR does not preclude the levying of a military service replacement tax limited to men. The complainant filed a complaint in public law matters and requested that the decision of the Tax Appeals Court be set aside and that it be established that the military service replacement tax is not owed as long as women do not pay a replacement tax.
Considerations
The Federal Court examined the complaint from the perspective of Art. 14 ECHR in conjunction with Art. 4 ECHR. It found that the military service replacement tax is a financial compensation for the unfulfilled military service obligation and does not belong to taxes. The replacement tax is intended to achieve a distribution of burdens between Swiss citizens who perform military or civilian service and those who do not perform either military or civilian service.
The court found that the different treatment of men and women with regard to the military service obligation and the obligation to pay a replacement tax is constitutionally compliant. Art. 59 Cst. provides for a general obligation to perform military service only for men, while women can perform military service voluntarily. The military service replacement tax is a substitute performance for the military service or civilian service not fulfilled by personal service and is intended to establish…