Tax domicile of a weekly resident: centre of life at the place of work in the Canton of Berne, non-entry on the application against the Canton of St. Gallen for lack of an appealable assessment

Facts

Parties and Instances: The appellant [A.] (born 1988) has worked as a 'Business Process Engineer' at the Swiss Financial Market Supervisory Authority (FINMA) in Berne since 18 November 2013. He therefore rented an apartment in [U.] /BE. His belongings are kept in [V.] /SG, where he grew up (family place [W.] /SG, part of the municipality of [V.] /SG).

Procedural History: At the request of the municipality of [U.] /BE, the Tax Administration of the Canton of Berne determined by decision of 30 October 2019 that the appellant's tax domicile from 2018 onwards was in [U.] /BE. The cantonal remedies were unsuccessful; the Administrative Court of the Canton of Berne dismissed the appeal by judgment of 15 February 2021 (100.2020.257U).

Requests Before the Federal Supreme Court: The appellant requested that the judgment of the lower court be set aside and that it be determined that his tax domicile in the tax year 2018 was in [V.] /SG (main request). In the alternative, the matter should be remitted for a new decision; in the further alternative, the Canton of St. Gallen should be ordered to annul the 2018 assessment and refund excess taxes paid. The Administrative Court of Berne and the Tax Administration of Berne requested dismissal. The Cantonal Tax Office of St. Gallen stated that the appellant had not yet been assessed for 2018 and waived a response.

Subject Matter of the Dispute: Cantonal and municipal taxes of the Canton of Berne and direct federal tax, tax period 2018; tax domicile or jurisdiction for assessment between the Cantons of Berne and St. Gallen.

Factual Findings of the Lower Court: As a rule, the appellant returned to the family place on Friday afternoon, occasionally already on Thursday evening, and travelled to Berne for work on Monday morning. Holidays and public holidays at the family place were not established. He maintains family relationships with his brothers (with whom he lives in the house at the family place as co-owner) and with his father, which have gained in importance since the death of his mother in May 2014. Socially, he takes part in 'Magic: The Gathering' tournaments on Friday evenings and roughly eight times a year at weekends, plays 'Dungeons & Dragons' with his brothers and cousin and 'Airsoft' with his cousin, and meets former fellow students in the St. Gallen area. The lower court assumed that he also had certain social relationships in the Canton of Berne and assessed his ties to the family place as 'somewhat stronger'. It considered the housing situation at the place of work (furnished 3.5-room apartment) to be at least equivalent to that at the family place (single-family house).

Overnight Stays: The appellant claimed 191 nights in [W.] /SG and 174 nights in [U.] /BE in 2018. According to the lower court, this did not match the findings.

Considerations

Admissibility (consid. 1): The appeal was filed in due time and form and is directed against a final decision of a last cantonal instance in a public law matter (Art. 82 let. a, Art. 86 para. 1 let. d and para. 2 FSCA). As a taxpayer, the appellant is entitled to appeal under Art. 73 para. 2 DTHA and Art. 89 para. 1 FSCA. Insofar as he requests the annulment of the Bernese judgment, the appeal is admissible.

Non-entry regarding the Canton of St. Gallen: In tax domicile proceedings, the canton concerned must decide with binding effect on its tax sovereignty before it may continue the assessment procedure; this entitlement follows from the prohibition of intercantonal double taxation (Art. 127 para. 3 Cst.). The proceedings serve to clarify jurisdiction for assessment, not to independently determine the jurisdiction of another canton, including before the Federal Supreme Court. A challenge to the tax sovereignty of another canton is possible only in the case of an actual intercantonal conflict of jurisdiction (Art. 100 para. 5 FSCA), that is, where the other canton has already exercised its assessment jurisdiction. Here, there is no appealable assessment decision of the Canton of St. Gallen for 2018; the previous invoices were only provisional. The requests concerning St. Gallen are therefore inadmissible.

Standard of Review (consid. 2): The Federal Supreme Court is bound by the facts established by the lower court (Art. 105 para. 1 FSCA). Obviously incorrect findings of fact (equivalent to arbitrary) may be challenged only if it is substantiated that the defect may be decisive (Art. 97 para. 1 FSCA). The Federal Supreme Court may freely review rules of general experience. The law is applied ex officio (Art. 106 para. 1 FSCA); harmonised tax law is reviewed freely, while autonomous cantonal law is reviewed only for arbitrariness. For constitutional rights, a heightened duty to raise and substantiate complaints applies (Art. 106 para. 2 FSCA).

Tax Domicile (consid. 3.1 and 3.2): Pursuant to Art. 4 StA/BE and Art. 3 DTHA, tax domicile is where a person resides with the intention of permanent stay. The concept is based on Art. 23 CC. Decisive is not the internal intention but the totality of objective facts recognisable to third parties. The place of residence is the centre of life. The establishment of facts is a question of fact, while the determination of the centre of life is a question of law. The deposit of belongings or the exercise of political rights is a relevant but not sole decisive indicator. A merely temporary stay may establish a domicile if it is intended to last for a certain duration (as a rule at least one year).

Weekly Residents (consid. 3.3 and 3.4): Where a person stays in two places, the decisive factor is where the stronger ties exist, based on an overall assessment of family members, social relationships, professional position and housing conditions. For employees, domicile is in principle at the place of work. Married persons and those living in cohabitation regularly have their centre of life at the family place. For single gainfully employed persons over 30, or those who have been separated from parents and siblings for more than five years at the same place of work, the centre of life is generally at the place of work; in individual cases this may differ.

Burden of Proof (consid. 3.5.1 and 3.5.2): Holidays at the family place that were not established are to the detriment of the appellant, who derives a benefit from them (Art. 8 CC by analogy).…