Federal Supreme Court, 05.02.2026, 9C_140/2025
Facts
A.________ AG, a company that owns real estate in the canton of Thurgau, failed to file its tax return for the 2020 tax period despite several reminders and extensions. Consequently, the Thurgau tax authority issued an ex officio assessment on August 29, 2022, estimating the taxable net profit and capital.
The company filed an objection against this decision. The tax authority refused to consider the objection on the grounds that it was neither substantiated nor accompanied by evidence. The company's subsequent cantonal appeals against this refusal were rejected. The company then appealed to the Federal Supreme Court.
Legal Analysis
Under tax law (art. 164 para. 2 StG/TG ; art. 48 para. 2 StHG ; art. 132 para. 3 DBG), an objection to an ex officio assessment must be substantiated and include supporting evidence.
When a tax authority decides not to consider such an objection due to formal defects, the review by appellate bodies is limited to two questions:
- Was the decision not to consider the objection justified (i.e., was the objection indeed inadmissible)?
- Were the conditions for an ex officio assessment met in the first place?
Conversely, the substantive merits of the ex officio assessment (the accuracy of the estimated amounts) are not examined at this stage of the proceedings, except in cases of nullity. A taxpayer should not benefit from their own failure to comply with procedural obligations; the tax authority is not required to adopt the estimates most favorable to the taxpayer.
Application to the case
The Federal Supreme Court finds that the conditions for an ex officio assessment were clearly met. The appellant failed to fulfill its procedural obligations despite multiple reminders and more than a year and a half after the end of the tax period. The administration's refusal to grant yet another extension does not constitute excessive formalism or any other procedural violation.
The Federal Supreme Court also confirmed that the decision not to admit the objection was correct. The objection filed by the company merely announced future cooperation and requested a stay of proceedings, without providing detailed and substantive reasoning regarding the estimated tax factors or proposing any evidence. A simple promise to cooperate is insufficient to meet legal requirements.
The appellant's argument that its rental income was stable and should not have been estimated upwards was dismissed. The Court reiterated that tax assessments for previous years also had to be made ex officio due to the company's failures, and that the company must bear the consequences of the uncertainty created by its own breach of obligations.
Outcome
The Federal Supreme Court dismissed the appeal to the extent that it was admissible. The legal costs are to be borne by the appellant company.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
