Mixed donation and shareholders' agreement: exercising a call option at nominal value is not a taxable gift

Federal Supreme Court, 22.04.2026, 9C_118/2025

Facts

The dispute concerns a share transfer within a family company, B.________ SA, and its implications for gift tax in the canton of Vaud.

• Shareholding structure: The company was incorporated in 2007. A.A.________ (the father) held 60% of the shares, while his two sons, C.A.________ and D.A.________, each held 20%.

• Shareholders' agreement: On July 1, 2008, the three shareholders entered into an agreement providing for a reciprocal call option. In the event of a shareholder's death or withdrawal, the others could purchase their shares at par value.

• Share transfer: On August 1, 2017, C.A.________ (the son, domiciled in the canton of Vaud) transferred all 20 of his shares to his father, A.A.________ (domiciled in Valais), for a total price of CHF 20,000, corresponding to their par value (20 x CHF 1,000).

• Intervention by the tax authorities: In 2021, the Cantonal Tax Administration (ACI) of the canton of Vaud initiated tax assessment and tax evasion proceedings. It classified the transaction as a mixed gift, determining that the actual value of the shares was significantly higher than the price paid.

• Tax assessment and fine: The ACI set the tax value of the 20 shares at CHF 6,882,000. It calculated the gift tax base at CHF 6,862,000 (tax value minus the price paid) and issued a tax notice for CHF 1,029,300, along with a fine for tax evasion in the same amount. Upon appeal, the fine was reduced to CHF 771,975.

• Cantonal proceedings: The Vaud Cantonal Court rejected A.A.________'s appeal, upholding the classification of a mixed gift and the principle of taxation. A.A.________ then appealed to the Federal Supreme Court.

Law

The central legal question is whether the transfer of shares at par value, in execution of a shareholders' agreement, constitutes a taxable mixed gift.

• Definition of a gift in tax law (art. 12 and 15 LMSD/VD): For a gift to be recognized, three cumulative conditions must be met:
  1. An inter vivos transfer.
  2. Enrichment of the donee and impoverishment of the donor (gratuitous intent).
  3. An intention to give (animus donandi).

• Presumption of intent to give: The Federal Supreme Court reiterates that, when other conditions are met, the intent to give may be presumed between close relatives (family ties). It is then up to the party contesting the gift to rebut this presumption.

• Determining moment for analysis: To classify an act as a mixed gift, one must look at the time the contract creating the obligation was concluded (in this case, the 2008 shareholders' agreement) to determine whether an intent to give existed at that date (cf. ATF 98 Ia 258).

• Arbitrariness in the application of cantonal law (art. 9 Cst.): As gift tax falls under cantonal jurisdiction, the Federal Supreme Court only reviews the application of Vaud law from the perspective of arbitrariness. A decision is arbitrary if it is manifestly unsustainable or violates a clear legal principle.

Application to the specific case

The Federal Supreme Court ruled that the Cantonal Court's analysis was arbitrary and annulled the tax assessment.

• Absence of unilateral advantage in 2008: The Federal Supreme Court notes that the 2008 shareholders' agreement was balanced and reciprocal. The call option at nominal value applied generally to all shareholders (both the father and the sons). No shareholder was unilaterally advantaged over the others at the time the agreement was concluded. It was impossible to know who, in the future, would be the exiting shareholder and who would be the beneficiary of the call option.

• Random nature of the clause: Due to this random nature, it is impossible to establish an intent to give (animus donandi) on the part of C.A.________ toward his father at the time the agreement was signed in 2008.
• Absence of intent to give in 2017: The transfer of shares in 2017 was not a spontaneous act of liberality, but the fulfillment of a pre-existing contractual obligation triggered by C.A.________'s withdrawal from the company. The obligation to sell at a pre-fixed price excludes any intent to make a gift at the time of the transaction.

• Rebuttal of the presumption: Under these circumstances, the presumption of an intent to give between relatives is rebutted. It was incumbent upon the tax authorities to prove a genuine liberal intent, which they failed to do.

• Arbitrary establishment of facts: The Federal Supreme Court concludes that the cantonal authority established the facts in a manifestly inaccurate manner and assessed the evidence arbitrarily by finding that an intent to give existed.

Outcome

The Federal Supreme Court allows the appeal of A.A.________.

• The judgment of the Vaud Cantonal Court is annulled.
• It is determined that no gift tax is due for the transfer of the shares.
• Consequently, the fine for tax evasion is also annulled.
• The court costs (CHF 16,000) are to be borne by the Cantonal Tax Administration, which must also pay the appellant CHF 8,000 in legal fees.
• The case is remanded to the cantonal authority for a new decision regarding the costs and legal fees of the previous proceedings.
  
  

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