In a decision intended for publication (2C_950/2021), which confirms a previous decision (2C_701/2015) after having confronted the criticism of the doctrine, the Federal Court confirms a restrictive interpretation of the rule “einmal erfüllt, immer erfüllt” (rule according to which once the conditions for the participation exemption have been fulfilled in relation to a given participation, the right to the exemption remains acquired even on sales of less than 10% of the same participation): this rule presupposes, says the Federal Court, that a disposal of at least 10% has already taken place (“transaktionsbezogener Test”); it is not sufficient that the selling company has held (even for at least 1 year) a participation of 10% (“statusbezogener Test”). In the case at hand, the Federal Court thus confirmed the denial of the participation exemption to a company that sold a 3% share in a company in which it held a participation of slightly more than 10% before the sale (thus retaining a participation of slightly more than 7% after the sale). The Federal Court concedes to the appellant company that this interpretation is “problematic” from the point of view of equal treatment (since a company with a 15% shareholding which sells 10% in year n and 5% in year n+1 would benefit fully from the exemption, whereas a company with the same shareholding, but which sells 9% and then 6%, would not benefit from any exemption), but that it is the inevitable consequence of the thresholds set by law.
Transfer of real estate to private assets and donation of real estate – the donation ends the deferral
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29 Apr 2022 — Real estate taxation