Federal Supreme Court, 24.09.2025, 9C_223/2025
Facts
A.________ AG was registered in the commercial register with its statutory seat in the canton of Schwyz in August 2019. Suspecting that the company was actually managed from their territory, the tax authorities of the canton of Zurich opened proceedings to determine their tax jurisdiction for the 2019 and 2020 periods. Their suspicions were based on several indicators: the chairman of the board of directors of A.________ AG was also employed full-time by a sister company with premises in Zurich; three of the four individuals authorized to sign for the company resided in the canton of Zurich; and the address of the statutory seat in the canton of Schwyz appeared to be a mere "letterbox" domicile, shared with numerous other companies. A.________ AG refused to cooperate with the investigation, citing its Schwyz seat. The Zurich authorities nevertheless asserted their tax jurisdiction, a decision confirmed by the cantonal judicial authorities. The company appealed to the Federal Supreme Court, requesting the annulment of the Zurich decision or, alternatively, the annulment of the tax assessments that had already become final in the canton of Schwyz in order to eliminate double taxation.
Legal Analysis
Under harmonized tax law (Art. 20 LHID), a legal entity is subject to unlimited tax liability in the canton where its statutory seat or its place of effective management is located. The place of effective management is where the essential decisions of day-to-day management are taken and where the center of the company's economic existence is located. There is a presumption that the statutory seat coincides with the place of effective management. A canton claiming otherwise must prove, with a degree of preponderant probability, that the place of effective management is located within its territory. The taxpayer has a duty to cooperate in the establishment of the facts. By virtue of the principle prohibiting intercantonal double taxation (Art. 127 para. 3 of the Constitution), if the statutory seat and the place of effective management are in different cantons, the place of effective management constitutes the principal tax domicile. The canton of the statutory seat may then only tax the company if it maintains a secondary tax domicile there (e.g., a permanent establishment).
Application to the Case
The Federal Supreme Court confirms the analysis of the lower court. The indicators noted by the Zurich authorities (place of work and residence of the directors, nature of the Schwyz address) constituted sufficient grounds to open an investigation. The refusal of A.________ AG to cooperate was considered an additional factor against it. The Federal Supreme Court finds that the Zurich authorities succeeded in proving, with the required preponderant probability, that the center of gravity of management and the essential decisions of A.________ AG were taken in the municipality of Y.________ (ZH), on the premises of the sister company. Conversely, the appellant failed to provide counter-evidence of effective management activity at its statutory seat in the canton of Schwyz, which was merely a formal seat. Consequently, for the period in dispute, the company's principal tax domicile was in the canton of Zurich.
Outcome
The Federal Supreme Court dismisses the appeal insofar as it is directed against the canton of Zurich, thereby confirming the latter's tax jurisdiction. However, it allows the appeal insofar as it concerns the canton of Schwyz. It annuls the Schwyz tax assessments for the period in question (August 27, 2019, to December 31, 2020) and orders the canton of Schwyz to refund the taxes already collected, thereby eliminating the double taxation.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
