Facts
Parties and courts : The appellant ([A.A.] ) is the former wife of a taxpayer. The spouses married in 1988, settled in Geneva in 1997, separated de facto in 2008 and divorced in 2015. The dispute opposes the appellant to the Cantonal Tax Administration of the Republic and Canton of Geneva. The Federal Tax Administration concludes that the appeal be dismissed.
Course of the proceedings : On 10 December 2008, the spouses filed a joint tax return for the 2007 tax period. On 10 July 2013, the Tax Administration assessed the spouses for the federal direct tax (DFT) and the cantonal and communal taxes (ICC) for 2007, finding that amounts had been overpaid. On 17 July 2013, it refunded 3'008'695 fr. of ICC and 1'228'701 fr. 60 of DFT to the former husband alone. Following the appellant's request of 22 August 2013, the Tax Administration was ultimately required to issue a formal decision on the refund of half of these amounts in her favour. By decision of 17 July 2017, it declared the complaint inadmissible as untimely. The Administrative Court of First Instance held, by judgment of 5 March 2018, that the Tax Administration should have entered into the matter, but dismissed the request for refund on the merits. The Administrative Chamber of the Court of Justice dismissed the appeal by judgment of 5 March 2019 (ATA/226/2019).
Facts established : The spouses separated de facto in February 2008. Only the income and wealth of the former husband were taxed for 2007, the appellant having received no income. No agreement on the allocation of the advance payments had been concluded before the refund.
Subject matter of the dispute : Whether the appellant may claim half of the 2007 DFT and ICC advance payments overpaid by the couple, namely 2'118'698 fr. 60 (1'504'347 fr. 80 of ICC and 614'350 fr. 80 of DFT), already refunded to the former husband.
Claims : The appellant requests the annulment of the cantonal judgment and the repayment of 2'118'698 fr. 60, or alternatively the remittal of the case to the lower authority.
Considerations
Admissibility : The cantonal judgment is a final decision (art. 90 FSCA) rendered in public law matters by a higher judicial authority of last cantonal instance (art. 82 let. a, 86 para. 1 let. d and para. 2 FSCA), not covered by art. 83 FSCA. The appeal, filed in time (art. 100 para. 1 FSCA) and in the prescribed form, is brought by the addressee of the judgment, who has standing to appeal (art. 89 para. 1 FSCA). It is therefore admissible. The Federal Supreme Court in principle bases its reasoning on the facts established by the lower authority (art. 105 para. 1 FSCA); the challenge to the statement of facts must meet the requirements of art. 97 para. 1 and art. 106 para. 2 FSCA.
Federal direct tax : Under art. 13 paras. 1 and 2 DFTA, spouses living in joint household are jointly and severally liable for the tax, this joint liability ending ex lege upon separation. Art. 162 DFTA provides that amounts overpaid are refunded, without specifying to whom. In judgment 2A.379/2002 of 18 February 2003, the Federal Supreme Court held that it is not justified to refund equally to separated spouses; where the assessment is void, the refund must go to the person who paid the advance payments. Here, the assessment is not void, but the case law remains applicable: only the former husband paid the advance payments and only his taxable elements were assessed. The fact that the payment took place while the spouses were still jointly liable is not decisive. The violation of art. 162 para. 3 DFTA is rejected. The complaint of discrimination based on art. 8 para. 2 Cst. is also dismissed, as the refusal of refund is due to the absence of payment and of taxable income on the part of the appellant, and not to her sex. The appeal is therefore dismissed insofar as it concerns the DFT; the appellant, who did not pay the advance payments, must address her former husband through civil proceedings.
Cantonal and communal taxes : The DTHA harmonises neither the collection nor the refund of taxes; only cantonal law governs the question. The appeal cannot therefore directly invoke a violation of cantonal law, except from the angle of arbitrariness (art. 9 Cst.), the decision having to be arbitrary in its result. The applicable Geneva law is the LPGIP/GE, whose art. 31 para. 2 provides that in the case of a refund after divorce or separation, it is made in equal shares to each spouse, unless otherwise agreed. The Court of Justice had held art. 7 para. 5 RPGIP/GE contrary to legality and had refused to apply the equal division on the ground that it would be contrary to tax harmonisation and arbitrary. The Federal Supreme Court…