Facts
The deceased [B.] died on 10 August 2014. In her will of 31 October 2008, she appointed the [C.] Anstalt, with its seat in the Principality of Liechtenstein, which she had established, as the sole beneficiary ('sole beneficiary') of her estate. In the by-laws (Beistatut) of 11 June 2013, she designated herself during her lifetime as the only beneficiary of the Anstalt ('primary beneficiary') and provided for a succession after her death ('secondary beneficiary'). This provided for a payment of CHF 1'000'000.-- to the appellant [A.] , residing in [U.] , payable in ten annual instalments of CHF 100'000.-- each.
The Tax Administration of the Canton of Graubünden added the payments to the appellant's taxable income and assessed him on 13 February 2019 for cantonal and municipal taxes as well as direct federal tax for 2015 and 2016. The Tax Administration dismissed the objections on 10 December 2020. The Administrative Court of the Canton of Graubünden, 4th Chamber, dismissed the appeal by judgment of 16 August 2021 (A 21 3).
Before the Federal Supreme Court, the appellant requested that the lower court's judgment and the objection decisions be set aside and that a reassessment be carried out, with the payments to be qualified as tax-free receipts. The Administrative Court, the Tax Administration of the Canton of Graubünden and the Federal Tax Administration requested dismissal. The further documents of 15 February 2022 were taken into account.
The question in dispute is whether the payments are to be qualified as a tax-free acquisition of assets by way of legacy or gift within the meaning of Art. 24 lit. a DFTA (or Art. 7 para. 4 lit. c DTHA and Art. 30 lit. a cantonal tax law), or whether they are to be treated as taxable income under Art. 16 para. 1 DFTA.
Considerations
The lower court issued a single judgment for cantonal, municipal and direct federal tax. This is permissible, since the legal questions are governed identically under federal law and under the harmonised cantonal law. The appeal in public law matters is open against the final cantonal decision (Art. 82 ff. FSCA, Art. 146 DFTA, Art. 73 DTHA); the appellant has standing. Insofar as the appeal is directed against the objection decisions, it is inadmissible, as these are deemed to be contested as well by virtue of the devolutive effect.
Under Art. 16 para. 1 DFTA, income is subject to income tax; receipts from domestic and foreign foundations also fall under the general income clause and are in principle taxable. The qualification as legacy or gift fails: the appellant was not named in the will; only the Anstalt was appointed. There is no entitlement under succession law, and an interpretation according to the principle of intent (Art. 484 ff. CC) is excluded, as the wording is clear (BGE 131 III 106 E. 1.1). A gift mortis causa (Art. 245 para. 2 CO) also does not exist, since the deceased deliberately chose the indirect route via the Anstalt and there was no direct legal relationship between her and the appellant.
There is no basis for piercing the veil to the founder. Legal entities are legally independent; piercing ('principe de la transparence') presupposes abuse of rights and cannot be invoked by the taxpayer for his own benefit (BGE 136 I 49 E. 5.4). The Anstalt is recognised in Switzerland as a legal subject. A controlled Anstalt can only be treated as transparent where the founder continues to exercise influence; at the latest upon the death of the founder, the Anstalt is an independent taxable entity. The Anstalt is therefore not a mere succession vehicle. Taxation at the level of the Anstalt and at the level of the beneficiary does not lead to double taxation, as the taxable subjects are not…