Federal Supreme Court, 24.11.2025, 9C_207/2025
Facts
A company (the appellant), originally based in the canton of Zurich, was acquired in November 2020 by a foreign group for USD 41.25 million. In April 2021, it transferred its registered office to the canton of Thurgau. For the 2021 tax period, the company failed to file a tax return in either Zurich or Thurgau, despite reminders.
The Zurich tax authorities, suspecting an undeclared transfer of functions abroad, issued an ex officio assessment on October 5, 2023, setting the taxable net profit in Zurich at CHF 38 million and the taxable equity at CHF 40 million. The company filed an objection to this decision on November 20, 2023, which was after the statutory 30-day deadline.
The Zurich tax authorities declared the objection inadmissible due to it being filed late. This decision was upheld by the Tax Appeals Court and subsequently by the Administrative Court of the canton of Zurich. The company has appealed to the Federal Supreme Court, invoking the nullity of the ex officio assessment decision.
Law
The Federal Supreme Court reiterates the principles governing ex officio (or discretionary) assessment. A tax authority proceeds with this when a taxpayer, despite a formal notice, fails to comply with their procedural obligations (art. 46 para. 3 LHID ; § 139 para. 2 StG/ZH). Such an assessment must reflect the taxpayer's economic reality as closely as possible. It can only be challenged on the grounds of manifest inaccuracy. To return to the ordinary procedure, the taxpayer must, within the objection period, resolve the uncertainty regarding the facts by providing a complete declaration and the necessary evidence.
The Federal Supreme Court then distinguishes between voidability (the general rule) and nullity (the exception) of a decision. A decision is only void if it is affected by a particularly serious, manifest, or at least easily recognizable defect, and if legal certainty is not seriously compromised by declaring it void.
In the context of ex officio assessment, a decision is not void simply because of its substantive inaccuracy, even if manifest. According to recent case law (BGE 151 II 120), nullity can only be admitted if, in addition to manifest inaccuracy, there are serious procedural failings by the tax authority. This is particularly the case when the authority clearly abuses the ex officio assessment to penalize the taxpayer for violating their duty to cooperate (punitive intent).
Application to the case
The Federal Supreme Court first confirms that the company's objection was filed late. Filing documents with the Thurgau tax authorities cannot be considered a valid and timely objection filed with the competent Zurich authority. The inadmissibility of the objection was therefore correctly pronounced.
The only remaining question is the nullity of the ex officio assessment. The appellant invokes several procedural defects, notably the lack of reasoning in the decision and a violation of the principle of investigation. The Federal Supreme Court rules that the lack of reasoning, while constituting a violation of the right to be heard, only renders the decision voidable, not void. The company could have requested reasoning within the objection period, which it failed to do.
Likewise, the other alleged procedural shortcomings (lack of investigation, misinterpretation of a previous ruling) are not considered serious enough to constitute an abuse of rights or to demonstrate a punitive intent on the part of the tax authorities.
The Federal Supreme Court concludes that even if the assessment was materially and manifestly incorrect, the absence of serious procedural flaws and clear punitive intent by the tax authority precludes the decision from being void. The ex officio assessment of October 5, 2023, was therefore merely voidable. As the company missed the deadline to challenge it, the decision has become final.
Outcome
The Federal Supreme Court dismisses the appeal and orders the appellant company to pay the legal costs.
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