Facts
{ "title": \"Dismissal of appeal against the real estate capital gains tax due to lack of replacement acquisition in the case of a non-owner-occupied residence", \"facts": \"Parties and procedural history: The appellant ([A.] ) sold a property in [U.] /GR on 17 June 2019 for CHF 2,250,000, which she had acquired on 26 November 2010 for CHF 1,000,000. In 2018, she moved into an inherited house in [W.] , where she established her residence. Until then, she had been registered with the police at the former family home in [W.] , which had been awarded to her by the divorce judgment of 24 October 2011. The tax administration of the Canton of Graubünden assessed the appellant for the sale of the property in [U.] with a taxable real estate capital gain of CHF 1,072,327 and a real estate capital gains tax of CHF 321,698.10. The appellant claimed replacement acquisition on the grounds that the property was a primary residence permanently occupied by the owner. The tax administration dismissed the objection, as the appellant had lived in [W.] . The Administrative Court of the Canton of Graubünden dismissed the appeal with a judgment of 15 February 2022. The appellant now seeks the annulment of this judgment and the remittal of the matter for determination of the amount of the replacement acquisition.
", \"reasoning": \"1. Admissibility of the appeal The appeal in public law matters is admissible as it is directed against a final decision of the last cantonal instance and meets the requirements of Art. 82 lit. a, Art. 83, Art. 86 para. 1 lit. d and para. 2, Art. 89 para. 1, Art. 90 FSCA and Art. 73 DTHA. The appellant has made a substantive application in seeking a reduction of the real estate capital gains tax to the extent that it may be deferred due to replacement acquisition. An application for remittal is exceptionally admissible here, as the Federal Supreme Court could not itself decide in the event of allowance, as the necessary factual findings of the lower court are lacking.
2. Review competence and factual basis The Federal Supreme Court bases its judgment on the facts established by the lower court (Art. 105 para. 1 FSCA). A deviation from the factual basis is only possible in the case of obvious incorrectness or violation of the law (Art. 97 para. 1 FSCA). The appeal may raise violations of the law under Art. 95 et seq. FSCA. The Federal Supreme Court reviews the application of harmonised cantonal tax law with full cognition, while non-harmonised cantonal law is reviewed only for violation of the prohibition of arbitrariness and other constitutional rights (BGE 143 II 459 para. 2.1).
3. Complaint of violation of the right to be heard The appellant alleges a violation of the right to be heard (Art. 29 para. 2 Cst.) by both the tax administration and the lower court. These complaints are unfounded. The lower court correctly established and legally assessed the facts. Any alleged violation of the right to be heard by the tax administration would have been cured in the proceedings before the lower court, as the appellant was able to express her views in the appeal proceedings and the lower court was able to review the facts freely. Any possible violation of the duty to give reasons by the lower court would also have been cured in the federal court proceedings.
4. Substantive review of replacement acquisition The real estate capital gains tax of the Canton of Graubünden applies to gains from the sale of private property (Art. 41 para. 1 lit. a STC/GR, Art. 12 para. 1 DTHA). Under Art. 44 para. 1 lit. a STC/GR, the tax is deferred to the extent that the proceeds from the sale of a primary residence permanently occupied by the owner at the place of residence are used within two years to acquire a replacement property for the same use. The concept of \"permanently and exclusively owner-occupied residential property\\" requires that the home is owner-occupied at the time of the transfer and that the place of residence is located in the property sold at the end of the period of ownership. It is not necessary that the property was continuously owner-occupied throughout the entire period of ownership, but it may not be merely a temporary or occasional residence (BGE 143 II 233 para. 2.4).
5. Determination of residence and centre of life The appellant claims that she lived in the property in [U.] from 2011 to 2018, while the tax administration and the lower court located her residence in [W.] . Residence is determined by the totality of objective facts recognisable by third parties that manifest an intention to stay permanently (Art. 6 para. 2 STC/GR, Art. 3 para. 2 DTHA, Art. 23 para. 1 CC). The lower court, in favour of a residence in [W.] , considered the lack of deregistration from the city of [W.] , the annual tax return as an unlimited taxpayer, the predominant number of cash withdrawals and account statements in [W.] , and the family situation (care of the mother, residence of the daughters, guardianship for the nephew) as indications of the centre of life in [W.] . The appellant was unable to refute these findings. Her contradictory conduct, which she displayed in her tax returns, does not deserve protection. Therefore, it is not objectionable that the lower court concluded that the appellant had her residence in [W.] and not in [U.] . This has the consequence that the appellant does not meet the residence requirement for a deferral of the real estate capital gains tax under Art. 44 para. 1 lit. a STC/GR.
Decision: The appeal is…