Inter-cantonal Double Taxation of Income from Private Medical Practice

Facts

The married couple A. and [B.C.] , with their main tax domicile in Basel, lodged a constitutional complaint against the tax assessment decision of the Tax Office of the City of [X.] dated 6 August 2003 and against the appeal decision of the Tax Administration of the Canton of Basel-Stadt dated 19 February 2003. The complainant, Dr. med. [A.C.] , is employed as a senior physician in the Radiological Department of the Kantonsspital [X.] and earned gross income of CHF 164,932.-- in 2001 from private medical practice for outpatient patient treatment.

The Tax Administration of Basel-Stadt had determined that the complainant had only earned income from dependent employment and was therefore solely taxable at his main tax domicile in Basel. The Tax Office of the City of [X.] , on the other hand, assessed the complainant for a taxable income of CHF 145,900.-- from independent employment at the business location in the Canton of Thurgau.

The married couple [C.] requested that the tax assessment decision of the Canton of Thurgau be revoked and that the Canton of Thurgau be instructed to refrain from claiming tax liability for the income earned in 2001. Alternatively, they requested that the appeal decision of the Tax Administration of Basel-Stadt be revoked and that the Canton of Basel-Stadt be instructed to exempt the income of the complainant and his wife from taxation for the period from 1 January 2001 to 31 December 2001, based on fees for outpatient patient treatment in this canton.

Considerations

The Federal Court examined whether a violation of Art. 127 para. 3 Cst. existed due to double taxation. It found that the income of the complainant from outpatient private medical practice was recorded by both the Canton of Basel-Stadt and the Canton of Thurgau, which constitutes actual double taxation.

The Court assessed the tax qualification of the complainant's private medical practice and concluded that it was dependent employment. It took into account the circumstances of the individual case, such as the fact that the complainant did not have his own practice, did not have to take his own…