Statute of Limitations for Real Estate Capital Gains Tax Claims and Registration of Tax Liens

Facts

The [X.] Bank acquired two properties in Basel on April 7, 1995, for a total price of CHF 6,100,000.--. The price was paid by assuming mortgage debts in the same amount. For its secured claim exceeding this amount, the bank was issued a mortgage shortfall of CHF 1,017,320.--. The real estate capital gains tax was not considered in the mortgage realization and was not paid from the proceeds.

The tax administration of the canton of Basel-Stadt invoiced the already dissolved institution [Y.] , which had been deleted from the commercial register of the Principality of Liechtenstein on May 3, 1995, for real estate capital gains tax in the amount of CHF 427,950.-- plus interest of CHF 1,307.60 and requested the registration of a corresponding tax lien. The [X.] Bank lodged an objection against the registration and the assessment, which was rejected.

The Appellationsgericht of the canton of Basel-Stadt, acting as an administrative court, dismissed the appeal by the [X.] Bank and found that the real estate capital gains tax claim had not expired. The [X.] Bank requests the Federal Court to overturn the judgments of the Appellationsgericht and to establish that the real estate capital gains tax in question has expired.

Considerations

The Federal Court must examine whether the statute of limitations for real estate capital gains tax claims and the registration of tax liens are to be assessed according to the law of the canton of Basel-Stadt. The appellant alleges a violation of the rule of law and the prohibition of arbitrariness through the retroactive application of § 148 of the Basel law of April 12, 2000, on direct taxes.

The Federal Court has found that the statute of limitations is a substantive law institution that directly affects the existence of the tax claim. Therefore, the old law is still applicable, which, however, does not contain any provision on the statute of limitations for tax assessments. The lower court has thus applied § 212 of the cantonal law of April 27, 1911, concerning the introduction of the CC, according to which all claims for which federal law or cantonal laws do not provide a different period expire after a period of ten years.

The Federal Court has also examined whether the statute of limitations was interrupted by a lawsuit or a plea before a court. It has found that the statute of limitations was interrupted on several…