No appeal against a remand decision by the cantonal tax office

Facts

The Federal Supreme Court had to rule on an appeal by the cantonal tax office of Zurich against a decision of the Administrative Court of the Canton of Zurich. The Administrative Court had remanded the case to the Tax Appeals Commission I of the Canton of Zurich to conduct a supplementary investigation of the facts. The cantonal tax office requested the Federal Supreme Court to overturn the decision of the Administrative Court and confirm the ruling of April 12, 2007.

The [X. AG] , the respondent, had deducted withholding tax on the salary of its employee [R.] for the period from May 1 to June 30, 2006, and paid it to the tax authorities. Later, it requested a refund of the paid withholding tax, as its employee had not been subject to withholding tax from May 1, 2006.

The tax office of the Canton of Zurich rejected the request, and [X. AG] 's appeal was unsuccessful. However, the Tax Appeals Commission I of the Canton of Zurich found that [R.] was not subject to withholding tax from May 1 to December 31, 2006, in the Canton of Zurich or in Switzerland for the income earned at [X. AG] , and ordered the refund of the withholding tax already paid.

Considerations

The Federal Supreme Court examined its jurisdiction and the prerequisites for appeal ex officio and with free cognition. It found that the contested decision of the Administrative Court was a remand decision that did not conclude the proceedings.

The Federal Supreme Court decided that a remand decision that does not merely require the computational implementation of the order given by the higher instance can only be appealed under the conditions of Art. 92 f. FSCA. It examined whether the conditions of Art. 93 Abs. 1 FSCA were met, in particular whether there was an irreparable harm or whether the approval of the appeal would immediately lead to a final decision and thus…