Federal Supreme Court, 29.01.2026, 9C_156/2025
Facts
A couple, both working full-time, has two children aged 4 and 6. For the 2022 tax year, they deducted expenses incurred for "thematic camps" during school holidays and "creative courses" on Wednesday mornings (a non-school day in Geneva for this age group) from their income. These activities, focused on playful language learning, are organized by a company whose purpose is education.
The Geneva Cantonal Tax Administration (AFC) refused the full deduction of these expenses, granting only a flat-rate allowance for holiday camps in accordance with a new cantonal practice. It considered these expenses to be primarily related to education rather than childcare. The Cantonal Court of Justice overturned this decision, ruling that the expenses were fully deductible as childcare costs. The AFC appealed to the Federal Supreme Court.
Law
The Federal Supreme Court (TF) is called upon to interpret the concept of "childcare costs" within the meaning ofArt. 33 para. 3 DBIG andArt. 9 para. 2 let. m StHG. The deduction of these costs is a general deduction intended to promote the balance between professional and family life and to tax taxpayers according to their economic capacity.
The TF reiterates that to be deductible, childcare costs must be documented, concern a child under 14 years of age, and show a direct causal link to the parents' gainful employment, education, or incapacity to work.
The TF clarifies that the concept of "childcare" does not imply mere passive supervision. Collective childcare facilities (daycare centers, after-school programs) inherently offer activities that promote child development, and their costs are deductible. Excluding the deduction outright for structures offering specific activities (linguistic, sports, etc.) would be contrary to the purpose of the law and would create inequalities.
Conversely, not all activity costs are deductible. The decisive criterion is the primary purpose of the expense. It is up to the taxpayer to prove that their need for childcare was the primary and main motivation for using the facility, with the educational or recreational aspect being secondary. If this proof is provided, the entire cost (excluding maintenance costs such as food) is deductible, without the need to break down the costs between "pure childcare" and "activity."
Application to the specific case
The TF notes that the parents' need for childcare is established: both work full-time, their children are young, and the activities take place during working hours, either on Wednesday mornings (a non-school day) or during school holidays.
The TF upholds the Court of Justice's assessment that the parents proved their primary motivation was childcare. Several elements confirm this: the wide time slots offered by the facility (8 a.m. to 1 p.m. or 8 a.m. to 5 p.m.) corresponded to an effective childcare solution, and the proximity to one of the parents' workplace was a deciding factor. Furthermore, given the young age of the children (4 and 6), the educational goal could only be secondary to the need for supervision. The hourly cost, barely higher than the Geneva minimum wage, also rules out the possibility that this was a luxury expense.
The AFC's argument, according to which the company's purpose (education) proves the educational nature of the expenses, is deemed insufficient to overturn the lower court's assessment of the facts.
Outcome
The Federal Supreme Court has dismissed the appeal filed by the Cantonal Tax Administration. It upholds the ruling of the Court of Justice, allowing taxpayers to deduct the full cost of "thematic camps" and "creative courses" as childcare expenses for federal direct tax as well as cantonal and municipal taxes.
Silex tax newsletter published in collaboration with Anna Vladau, Attorney at Law
