Facts
The case concerns a taxpayer, Otto Walter, who bought and sold shares in a real estate company in the canton of Bern. The taxpayer realized a significant gain from the sale of these shares. The Bern tax authority considered this gain as a real estate gain subject to the fiscal sovereignty of the canton of Bern, while the taxpayer believed that this gain should be taxed in his canton of residence, namely the canton of Vaud.
The taxpayer contested the decision of the Bern tax authority and filed a complaint with the Administrative Court of the canton of Bern, which rejected his request. The taxpayer then appealed to the Federal Court, invoking in particular the violation of the prohibition of double taxation and Article 4 of the Federal Constitution.
Considerations
1. The exception of double taxation
The Federal Court recalled that the exception of double taxation can only be invoked by the interested cantons and not by the taxpayer himself. The Federal Court also emphasized that the cantons have a certain freedom in the development of their tax law, including with regard to the prescription of taxation and the limitation period of the tax claim.
2. The real estate company and the gain realized from the sale of its shares
The Federal Court examined the question of whether the gain realized from the sale of all shares in a real estate company can be considered as a real estate gain subject to the fiscal sovereignty of the canton where the property is located. The Federal Court recalled that the real estate company is a legal entity distinct from its shareholder and…