Tax residence in the canton of origin as a problem for singles

Judgement of 16 March 2018 - BGer 2C_580/2017

X, a full professor at the University of Fribourg, lives in a rented apartment in the same city due to his appointment to the university. Originally X comes from Canton of Ticino and is Owner of a property located there. Since X has no family, he and his mother live in said house. In May 2012, X has been appointed by the cantonal Tax Administration of the Canton of Fribourg requested to fill in a questionnaire concerning the determination of tax domicile in intercantonal circumstances. X stated that he spent 180 days a year at work in the canton of Fribourg, the rest of the time especially all weekends and holidays at Canton of Ticino . X also stated that he would spend his family and friendship in the Canton of Ticino care. The cantonal Tax Administration Fribourg was satisfied with the answer in 2012 and thus recognised X's tax domicile in Canton of Ticino. In May 2014 the same Authority at X, whether the conditions from 2012 still applied, which the latter affirmed.

In October 2015, the cantonal Tax Administration of the Canton of Fribourg decreed a change in its previous position, fixing the tax domicile in the Canton of Fribourg. Thus X did not appear to be and lodged an objection and complaint on the grounds that the centre of his life was in Canton of Ticino. He referred to several indicators, which would allow an allocation to Canton of Ticino would justify: weekly return to the Ticino, the work there as an expert in a school and radio once a week, regular visits to his elderly mother, memberships in various institutions and the fact that X consulted a doctor, dentist and physiotherapist at Canton of Ticino .

None of these arguments helped X - the cantonal court dismissed the appeal as the last cantonal instance, whereupon X appealed to the Federal Supreme Courtarrived with the request to fix the tax residence in Canton of Ticino.

Judgement of 6 June 2018 - BGer 2C_296/2018

A, 37 years old, single, with civil law residence in Canton of Valais, has been registered as a weekly resident in Canton of Zurich since October 2008. She exercises there a dependent gainful employment as a clerk in the commercial area. Since 2013 she has had her own apartment at Canton of Zurich . Independently of this, she always kept her own apartment in her parents' house at Canton of Valais a room of your own. For the tax year 2015, the Zurich tax office issued a domicile ruling for the Canton of Zurich.

A did not agree with this and lodged an objection, an appeal and a complaint with the respective courts. The Administrative Court of Zurich, in particular, based its reasoning for a tax affiliation to the Canton of Zurich on a presumption established by practice: this states that the tax domicile is at the place of work if an unmarried person over thirty years of age has already resided in the corresponding cantonal territory for more than 5 years. According to the Administrative Court, the A concerned did not succeed in overturning this presumption. The last cantonal instance protected the domicile ruling of the cantonal tax authorities, which is why A appealed to the Federal Supreme Court on 11 March 2018.

Considerations of the Federal Court

Due to the identity of the subject matter of the dispute, legal issues and considerations of the Federal Supreme Court, the subject matter of these two decisions will be dealt with together. The tax law Residence is defined analogous to the Civil Code as "the place with the intention of permanent residence". If a person has more than one such place, the centre of living conditions shall be determined. Only objective criteria shall be used in determining the centre of living conditions. The subjective feelings of the person who has to pay the taxes is not relevant.

If a person alternately stays in two different places, such as the place of residence and the place of work, the tax domicile is in the place where the taxpayer can prove the closer relationship, i.e. the centre of the living conditions. The Federal Supreme Court differentiates in the assessment between Married/cohabiting couples/registered partners and single/divorced/widowed persons:

• In the case of married or cohabiting persons, a closer relationship with the place of residence of the family is generally assumed. This also particularly applies if the taxpayer is resident at his place of work and does not constantly return to the family residence. In tax terms, the taxpayer's place of residence is usually the family's place of residence. In exceptional cases, however, the overall circumstances of the individual case may also justify the tax residence at the place of work.
• For singles (single/widowed/divorced), this is to be considered the same in principle. However, the Lausanne judges are of the opinion that the relationship with parents, siblings and/or friends is regularly less close than the relationship with a spouse/cohabiting partner/registered partner and any children. For this reason, the relationship to the place of work exceptionally comes to the fore if the employment relationship (and thus the residence outside the canton) has lasted for more than 5 years and the person concerned has exceeded the age of 30. According to the Federal Supreme Court, there is then a presumption in favour of the centre of life at the place of work. The overturning of this presumption is burdened with high hurdles. The taxpayer must show that he/she returns to the place of residence of his/her parents/siblings for the majority of weekends, that he/she maintains particularly close ties to these persons and that he/she has other extensive social and personal ties to this place.

In the two cases at hand, both obligors only had parents/siblings in the respective canton of origin and not spouses. Both X and A were already over 30 years old and had been staying at the place of work for more than 10 years. The presumption set out above could be applied to both cases.

Complainant X was not able to provide evidence of a lack of ties with his place of work, as he had contacts with other professors, assistants and other employees of the University. In this context, it did not help that the complainant worked in Ticino every week, always returned to Canton of Ticino on weekends, and that he had to be able to find a job at the university. was a member of various organizations in Ticino, as well as supporting his elderly mother. In the opinion of the Federal Supreme Court, the contacts and links with the canton of origin Ticino is not sufficiently pronounced to refute the presumption in question. X had his centre of life and therefore his tax residence in the Canton of Fribourg - on Location of his workplace.

Appellant A was also unable to convince the Lausanne judges. Using bank statements, utility bills, confirmations from her parents, the Samaritan association and the tambourine and pipe association, she tried unsuccessfully to overturn the Federal Court's assumption. A could not sufficiently demonstrate that she returned to the family canton of Valais most weekends. Similarly, the participation in local and communal activities did not, in the opinion of the judges, allow the conclusion that the complainant was resident for tax purposes in the canton of Valais. The taxpayer's ties to the canton of Valais proved to be too weak for the Federal Court's presumption to be successfully rebutted. A was assessed in Zurich, the place where she worked. With both rulings, the Federal Supreme Court confirmed its established practice of presuming tax domicile at the place of work for the above-mentioned category of persons.

With both judgments, the Federal Supreme Court confirmed its constant practice of presuming tax domicile at the place of work for the above-mentioned category of persons.

Conclusion

It is probably essential to make such assumptions for the sake of practicability. Nevertheless, the jurisdiction of the Federal Supreme Court contains weighty problems. One under this assumption falling person is only in the rarest cases and with the lowest probability of success able to refute the assumption of the Federal Court that the centre of the living conditions. This is true even though there are many indicators and connections in favour of the canton of origin.