Facts
The case concerns [L.], who operated a home school until November 30, 1987. In August 1990, part of the building housing this establishment was sold, realizing a taxable capital gain of 136'500 francs. The Valais cantonal compensation fund set the personal OASIA contributions due by [L.] for the year 1989 at 15'826 fr. 85 based on this amount, considered as income from an independent activity. The insured appealed against this decision, then against a second decision by the fund claiming a special contribution of 13'356 francs on the liquidation profit.
The Valais cantonal social insurance court ruled on the appeals, annuling the fund's decision and referring the case for a new decision. The Federal Office of Social Insurance filed an administrative law appeal, concluding with the annulment of the cantonal judgment and requesting that the capital gain be subject to contributions.
Considerations
The Federal Social Insurance Court examined the question of whether a special contribution can be levied on the capital gain realized by the defendant in 1990. The case law establishes that the compensation funds do not have the possibility of levying a special contribution in cases where the tax authority has not proceeded with a special taxation according to art. 43 DFTA.
In this case, the tax authority did not apply art. 43 DFTA, and the capital gain was subject to ordinary income tax on federal direct tax. The Federal Social Insurance Court considered that the special contribution is a creation of the legislative power and is subject to the principle of legality, and that the legal basis to be taken into consideration is art. 23bis OASIO, which subordinates the levying of the special contribution to the submission of the capital gain to the special annual taxation provided for in art. 43 DFTA.
Th…