Facts
The appellant, [A. SA] (real estate company with registered office in [V.] /GR, founded in 2008 for the planning, development and construction of developments as well as the purchase, sale and letting of properties), had four shareholders, each holding 25% of the shares, including [B.] .
By purchase agreement of 15 December 2017, the appellant sold condominium units No. aaa and No. bbb as well as co-ownership shares No. ccc and No. ddd, located in the municipality of [U.] , to [B.] for a total price of CHF 1'010'600.--.
By decision of 1 February 2018, the Municipal Tax Office of [U.] assessed a real estate transfer tax of CHF 20'212.-- (2% of CHF 1'010'600.--). The municipality of [U.] dismissed the objection by decision of 4 April 2018. The Administrative Court of the Canton of Graubünden, 4th Chamber, dismissed the appeal by judgment of 30 October 2018.
Before the Federal Supreme Court, the appellant requests that the lower court's judgment be set aside and that it be declared that, under an economic approach, no real estate transfer tax is owed. The municipality and the lower court request that the appeal be dismissed.
The appellant complains that under Art. 8 para. 1 GKStG/GR only economic real estate transfers are taxable; the transfer is economically a partition in kind, which according to the Message on the GKStG/GR is tax-exempt. It is a 'de facto building company' in the form of a simple partnership and should therefore be treated in the same way as a partition in kind of a property held in joint ownership.
Considerations
The appeal in public law matters is formally admissible against a final cantonal decision in a public law matter (Art. 82 lit. a, Art. 86 para. 1 lit. d and para. 2, Art. 89 para. 1 FSCA). The request for a declaratory judgment is inadmissible in the absence of a protectable interest going beyond the annulment; it is not entered into.
Real estate transfer tax is not harmonised in Switzerland (Art. 129 para. 1 Cst.), so cantonal law applies, the application of which the Federal Supreme Court reviews only for arbitrariness (Art. 9 Cst.) and other constitutional rights. Arbitrariness exists where the decision is untenable, both in its reasoning and its result, and not merely where a different solution appears defensible (BGE 145 II 32 consid. 5.1). The complaint of unequal treatment is to be examined within the framework of the prohibition of arbitrariness and the principles of generality and equality of taxation (Art. 127 para. 2 Cst.), whereby the cantonal legislator enjoys a wide margin of discretion.
Under Art. 8 para. 1 GKStG/GR, any transfer of actual and economic power of disposal over a property is considered a real estate transfer. The lower court could, without arbitrariness, assume that the transfer from the company to the shareholder constitutes an economic real estate transfer. The buyer held only 25% of the shares and was therefore economically entitled to only a quarter; he could exercise actual power of disposal only jointly with the other shareholders. Only through the transfer did he acquire sole power of disposal. Qualifying the transition from joint to sole power of disposal as an economic real estate transfer is not untenable.
The Federal Supreme Court rejects equating the transfer with that of building companies in the form of simple partnerships. The GKStG/GR contains no special rule for transfers from simple partnerships or building companies; Art. 9 lit. a GKStG/GR (exemption in case of inheritance partition) rather suggests that transfers from joint ownership to sole ownership are taxable. The practice of the lower court exempts the acquisition by a partner of a simple partnership only if he already had a controlling influence, and reduces the tax proportionally under Art. 8 para. 3 GKStG/GR. The…