Facts
The Swiss Confederation (creditor) initiated debt enforcement proceedings for security against A. (debtor) on 14 November 2023. The legal basis was a security order issued by the tax authority on 9 November 2023 for an amount of CHF 1,065,000.- plus interest at 4 % as of 10 November 2023. The debtor filed a legal objection against the payment order.
On 12 December 2023, the creditor applied to the District Court of Solothurn-Lebern for definitive legal enforcement for the claim, interest, costs and a collection fee. On 12 March 2024, the District Court dismissed the application and ordered the creditor to bear the court costs of CHF 1,000.- and to pay party compensation of CHF 2,021.80 in favour of the debtor.
The creditor appealed to the Higher Court of the Canton of Solothurn, which on 18 June 2024 overturned the first-instance judgment and granted the definitive legal enforcement. The debtor was ordered to reimburse the arrest costs (CHF 476.90) and enforcement costs (CHF 466.30) as well as to bear the procedural costs of both instances (CHF 1,000.- and CHF 6,000.- respectively) and party compensation totalling CHF 1,200.-.
The debtor then filed an appeal in civil matters with the Federal Supreme Court, seeking the annulment of the Higher Court’s judgment and the dismissal of the legal enforcement application. The creditor and the Higher Court requested the dismissal of the appeal.
Considerations
The Federal Supreme Court examined whether a security order can serve as the basis for definitive legal enforcement in debt enforcement proceedings for security before it has attained formal legal force. It found that legal enforcement pursuant to Art. 81 para. 1 DEBA requires an enforceable title, which for tax claims generally requires the formal legal force of the assessment (Art. 165 para. 3 DFTA).
The security order under Art. 169 DFTA serves to provisionally secure tax claims but is not equivalent to a legally binding assessment. The enforceability of the security order (Art. 169 para. 1 DFTA) relates to its function as an arrest order, but not to its suitability as a legal enforcement title. Debt enforcement proceedings for security can only be continued once the security order has attained formal legal force, as otherwise the debtor has no opportunity to have the substantive justification of the tax claim reviewed by a court.
The lower court had granted legal enforcement even though the security order was not yet legally binding. This contradicts the consistent case law, according to which only legally binding security orders can be recognised as…