Tourist tax for holiday apartments: dismissal of the abstract review of norms against the annual flat-rate tax of the municipality of Leukerbad

Facts

Parties and proceedings: The three appellants (two non-resident holiday apartment owners and an association whose members are second-home owners in the municipality) challenged the Tourist Tax Regulation of the Municipality of Leukerbad (KTR/LB) before the FSCA in abstract review of norms proceedings. The Municipality of Leukerbad requested dismissal, insofar as the appeal was admissible. The Council of State of the Canton of Valais waived a statement of position.

Legal framework: Under the cantonal Tourism Act (TG/VS), municipalities levy the tourist tax either on an actual basis or as a flat rate; a flat rate must be calculated on the basis of objective criteria and must take into account the average occupancy rate, including occasional rental (Art. 21 para. 3bis TG/VS).

Background: The KTR/LB of 17 December 2015 provided for an annual flat rate for holiday apartments (Art. 4 para. 2 and Art. 6 KTR/LB) with an occupancy rate of 60 days. By judgment 2C_519/2016 of 4 September 2017, the FSCA annulled Art. 6 para. 2 KTR/LB because the occupancy rate was too high. The municipality then reduced the occupancy rate to 50 days; the Council of State approved the amendment only on a temporary basis until 31 December 2019, subject to the condition that a new occupancy calculation be submitted. On 22 January 2020, the Council of State approved the definitive version without time limit, published in the Official Gazette of 31 January 2020.

Data basis: The municipality based the occupancy rate on data from the FERATEL application (Leukerbad Card Plus guest card) from 1 October 2018 to 30 September 2019. 645'918 overnight stays were registered; after deducting hotels and rented holiday apartments, a balance of 144'694 overnight stays remained for self-used or permanently rented holiday apartments. With 7'598 beds, average occupancy rates of 78.4 (rented), 34.4 (self-used) and 53.9 (overall average) resulted. The municipality acknowledged abuses in password-free online registrations (58'021 overnight stays); without these, an overall average of 46.3 overnight stays per bed would result.

Grounds of appeal: The appellants complained (1) of arbitrary determination of the occupancy rate on the basis of unreliable data (Art. 9 Cst.) and (2) of a violation of the principle of equal treatment (Art. 8 para. 1 Cst.), because owners who rent out and owners who use their apartments themselves, as well as permanent tenants, should have been treated differently. The appellants requested annulment of Art. 4 para. 2 and Art. 6 para. 2 KTR/LB.

Considerations

Admissibility: Since the Canton of Valais does not provide a cantonal abstract review procedure for purely fiscal enactments, the municipal regulation may be challenged directly before the FSCA (Art. 82 lit. b, Art. 87 para. 1 FSCA). The publication in the Official Gazette of 31 January 2020 is decisive for the time limit (Art. 101 FSCA); the appeal of 28 February 2020 was timely.

The appeal against Art. 4 para. 2 KTR/LB is not admissible, as this provision was neither annulled nor amended and did not receive new content (partial revision, Art. 89 lit. FSCA practice). By contrast, Art. 6 para. 2 KTR/LB is admissibly challenged, since the removal of the time limit in Art. 14 KTR/LB gives it new regulatory content that has a detrimental effect on owners. Appellants 1 and 2, as non-resident owners, are virtually affected and have a legitimate interest (Art. 89 para. 1 lit. b and c FSCA). The association (appellant 3) is entitled to safeguard the interests of its members, since they would themselves be entitled to appeal and the association's purpose includes safeguarding interests vis-à-vis authorities.

Standard of review: The FSCA reviews municipal law only from the standpoint of constitutional rights, in particular the prohibition of arbitrariness (Art. 9 Cst.) and the principle of equal treatment (Art. 8 para. 1 Cst.). Since no cantonal constitutional jurisdiction exists in tax matters in norm review proceedings, the FSCA establishes the facts itself and assesses evidence freely (Art. 55 para. 1 FSCA in conjunction with FCPA).

Arbitrary-free determination of the occupancy rate: The municipality's method is not arbitrary. The FERATEL data are indeed imprecise (overbooking and underbooking), but they do not call into question the suitability for determining the occupancy rate to such an extent that the method would appear to be a manifestly arbitrary implementation of Art. 21 para. 3bis TG/VS. Even after deducting the abusive online registrations, an average of 46.3 overnight stays would result, which corresponds to the situation in judgment 2C_519/2016, in which a value of 50 overnight stays was permissible as a surcharge for an estimated dark figure of around 10 per cent. Including all holiday apartments regardless of self-use or rental is likewise not objectionable under more recent case law (judgment 2C_353/2020).

Equ…