Facts

On 5 December 1997, the testator [F.] died, leaving behind a continued community of heirs consisting of his wife [C.] (party involved 1) and the children [B.] (respondent to appeal), [D.] (party involved 2), [A.] (appellant) and [E.] (party involved 3). The estate essentially comprised the farm business “[U.] /[V.] ”, consisting of the business part “[U.] ” and a 50% co-ownership share in the business part “[V.] ”.

On 29 April 2010, [B.] filed a claim for partition of the estate and requested the assignment of the farm business for self-management at its income value. [A.] , who had leased the business part “[V.] ”, initially requested the assignment of this part and later of the entire business. The District Court of Hinwil assigned the entire business to [B.] , but the Higher Court of the Canton of Zurich set aside this decision and referred the matter back for supplementation. After a renewed decision by the District Court and an appeal by [A.] , the Higher Court partially set aside the judgment and referred the matter further to the District Court. The Federal Supreme Court set aside the Higher Court’s judgment and referred the matter back, confirming the integral assignment of the business to [B.] (Judgment 5A_350/2019 of 26 October 2020).

The Higher Court of the Canton of Zurich decided on 19 December 2022 (served on 23 December 2022) and confirmed the integral assignment of the business to [B.] , setting the income value of the business at CHF 794,000.--. This value was based on an assessment by the Office for Landscape and Nature of the Canton of Zurich (ALN) dated 25 May 2009. [A.] unsuccessfully requested a new income value assessment, arguing that the 2009 assessment was based on outdated bases and that the proceedings lasting over 13 years likely resulted in a change in the value of the business.

With an appeal in civil matters dated 1 February 2023, [A.] filed an appeal with the Federal Supreme Court, requesting the setting aside of the contested decision and the referral of the matter back for a new income value assessment. The Federal Supreme Court admitted the appeal, examined the admissibility and merits of the requests and concluded that the appeal was to be dismissed.

Considerations

1. Admissibility of the appeal and jurisdiction of the Federal Supreme Court

The Federal Supreme Court examined the appeal in civil matters under Art. 90 et seq. FSCA and found that it concerned a pecuniary civil matter with a sufficient amount in dispute (Art. 72 para. 1, Art. 74 para. 1 lit. b FSCA). The appellant was entitled to file the appeal, and the appeal period had been complied with (Art. 76 para. 1, Art. 100 para. 1, Art. 46 para. 1 lit. c FSCA). The appeal was of a quashing nature, as the appellant sought the setting aside of the contested decision and the referral of the matter back. The Federal Supreme Court examined the appeal taking into account the reformatory nature of appeals in civil matters (Art. 107 para. 2 FSCA) and the limited jurisdiction under Art. 95 et seq. FSCA.

2. Requirements for the grounds of appeal

The Federal Supreme Court recalled the strict requirements for the grounds of appeal under Art. 42 para. 2 FSCA. The appellant must state in a concise form in what respect the contested decision is unlawful and address the relevant considerations of the lower court. If the decision is based on several independent grounds, the appeal must address each of these grounds. The Federal Supreme Court based its examination on the facts established by the lower court (Art. 105 para. 1 FSCA) and only considered clearly and specifically raised objections. Purely appellatory criticism of the facts or insufficiently substantiated objections were not taken into account (Art. 106 para. 2 FSCA).

3. Substantive examination: entitlement to a new income value assessment

The subject of the dispute was the valuation of the farm business “[U.] /[V.] ” at its income value under Art. 17 para. 1 RLRA. The income value is to be assessed by an authority ex officio or upon request (Art. 87 para. 1 RLRA) and is binding on the civil courts unless the assessment suffers from gross defects. Such a defect exists if the assessment is based on incorrect legal bases or cannot possibly be correct (BGE 58 II 406, 410; 87 II 74 E. 3a; Judgment 5A_61/2017 and 5A_74/2017 of 7 March 2019 E. 8.2.1).

The Federal Supreme Court found that the assessment dated 25 May 2009 was based on outdated bases, as a revised guide for the assessment of the agricultural income value entered into force on 1 April 2018. Moreover, more than 13 years had passed between the assessment and the time of the judgment, which likely resulted in a change…