Tourist tax flat rate for holiday apartments: arbitrary occupancy rates, equal treatment and prohibition of double taxation not violated

Facts

The appellant is a non-resident owner of a holiday apartment in the municipality of Fiesch (VS) and is represented by a lawyer. She challenges the Tourist Tax Regulation of the Fiesch Municipality (KTR/Fiesch) dated 26 August 2020 and its approval by the Council of State of the Canton of Valais dated 21 October 2020. The regulation was published in the Official Gazette on 6 November 2020 and entered into force on 1 November 2020.

Under the Valais Tourism Act (TG/VS), municipalities may levy the tourist tax either on an actual basis or as a flat rate. For flat-rate levying, the flat rate pursuant to Art. 21 para. 3bis TG/VS must be calculated on the basis of objective criteria, and the average occupancy rate of the form of accommodation, including occasional letting, must be taken into account.

The new regulation provides that owners or long-term tenants of holiday properties pay the tourist tax by means of an annual flat rate (Art. 4 para. 2 KTR/Fiesch), whereby all taxable overnight stays in the property, including occasional letting, are covered (Art. 4 para. 3 KTR/Fiesch). The tourist tax amounts to CHF 3.50 per overnight stay (Art. 5 KTR/Fiesch). Art. 6 paras. 2 and 3 KTR/Fiesch scale the annual flat rate for holiday apartments according to size and are based on an average occupancy of 27 nights in Sector 1 (Fiesch) and 57 nights in Sector 2 (Fiescheralp).

The appellant requests the annulment of Art. 4 para. 2 and Art. 6 paras. 2 and 3 KTR/Fiesch. She alleges arbitrary determination of the occupancy rates (Art. 9 Cst.), a violation of the principle of equality (Art. 8 para. 1 Cst.) and a violation of the prohibition of double taxation (Art. 127 para. 3 Cst.) due to the lack of earmarking of the tourist tax. The Municipality of Fiesch requests dismissal of the appeal; the Council of State waived its right to comment.

Considerations

The Federal Supreme Court admits the appeal. It constitutes an abstract review of a municipal enactment (Art. 82 let. b and Art. 87 para. 1 FSCA), since the Canton of Valais does not provide for a cantonal abstract norm review procedure for purely fiscal enactments. The approval is not separately appealable, but for the time limit the publication in the Official Gazette of 6 November 2020 is decisive; the appeal of 25 November 2020 is timely. As an owner of a holiday apartment, the appellant is virtually particularly affected (Art. 89 para. 1 let. b and c FSCA). The proceedings are at first instance, which is why the Federal Supreme Court itself establishes the facts.

With regard to the occupancy rates in Art. 6 paras. 2 and 3 KTR/Fiesch, the Federal Supreme Court examines arbitrariness (Art. 9 Cst.) with a certain restraint. Although a certain schematisation is permissible for the tourist tax as a cost-recovery tax, and the method of calculation based on overnight stays and bed factor is in principle permissible, Art. 21 para. 3bis TG/VS nevertheless requires detailed and transparent calculation bases. The Municipality was unable to substantiate the determination of overnight stays, and the data of Aletsch Arena AG cover only actually billed overnight stays, that is, predominantly commercially let properties. For flat-rate billed properties, it applied a fictitious, unverified value of 30 overnight stays without differentiating between the sectors. The comparison with neighbouring municipalities (Naters, Bellwald, Bürchen, Leukerbad) shows that an occupancy rate of 57 nights in Sector 2 is not reasonably justified. Art. 6 paras. 2 and 3 KTR/Fiesch therefore violate Art. 9 Cst.

The complaint of a violation of the principle of equality (Art. 8 para. 1 Cst.) concerning Art. 4 para. 2 KTR/Fiesch is unfounded. Tourist taxes as cost-recovery taxes must be…