In its judgment 9C_625/2023, the Federal Court rejects the possibility for a company holding listed securities to simultaneously record the increase in value of the securities in its balance sheet (assets) and a value adjustment / fluctuation reserve corresponding exactly to the amount of the increase in value (liabilities) in order to neutralize the increase in value.
First, the Swiss Federal Supreme Court points out that a value adjustment / provision is only admissible if there are concrete grounds for it. In particular, the risk of loss must be real, concrete and measurable, and cannot result from a simple retrospective analysis of share prices during the year in question. Such justification is all the more difficult to provide for a company that does not engage in active trading activities, and therefore incurs only a limited risk in holding securities over the short term.
In addition, the High Court underlined the potestative nature of article 960b paragraph 1 CO, which allows listed securities to be valued at their market value. It is therefore up to the taxpayer to decide whether or not to opt for this method of accounting, and to bear the resulting consequences, i.e. in tax law, the taxation of a profit on an unrealized asset in the event of an increase in the value of the securities. To this extent, it is not unfair for a company that has opted for the application of art. 960b CO to be treated differently from a company that does not make use of this provision.
In the present case, the appellant company had not provided any evidence of a concrete risk linked to the fluctuation of the securities which was likely to have an impact on its commercial activity. The fact that the prices of the securities in question had fluctuated in the past did not constitute a concrete element as required by the Federal Court. The fluctuation reserve is therefore rejected, and the gain resulting from the revaluation of the securities is subject to income tax.
