In a decision intended for publication concerning a contractual real estate fund holding real estate in particular in the canton of Fribourg (decision 2C_624/2021 of March 28, 2022), the Federal Court has confirmed that the canton may levy a transfer tax on the transfer of the fiduciary ownership of the real estate from the former fund management to the new one. The interest of the decision lies in the fact that the Federal Court did not only examine the cantonal decision from the limited perspective of the arbitrary application of the relevant cantonal law: it also examined, and rejected, the complaints of violation of economic freedom and of violation of the principle of the primacy of federal law (more precisely, the former art. 34 CISA, replaced since January 1, 2020 by Art. 39 para. 1 FinIA, which provides for the possibility of changing fund manager): on this last point, the Federal Court considers that “to admit without a well-considered decision of the federal legislator, as was the case for the adoption of Art. 103 LFus, that the levying of transfer duties of 3% on the purchase price of real estate in the event of a change in the management of an investment fund constitutes a violation of the derogatory force of federal law, would be tantamount to admitting that the competence of the cantons to levy transfer duties undermines (…) all the situations in which the federal private law legislator authorizes or arranges for the transfer of real estate ownership”. It will therefore be necessary to wait for a federal legal basis, such as the exemption for restructurings contained in the Merger Act, to impose on all cantons an exemption from transfer duties in the event of a change of real estate fund manager.
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