Swiss Federal Supreme Court, 09.12.2025, 9C_231/2025
Facts
In 2018, B. AG sold a property to C. AG. In 2021, C. AG resold the same property to A. AG (the appellant). The Schaffhausen cantonal tax authority issued a default tax assessment for B. AG for the 2018 tax year, resulting in a corporate income tax liability of over CHF 476,000. B. AG failed to pay the debt, went bankrupt, and was struck off the commercial register in 2022. In December 2022, the tax authority requested and obtained the registration of a statutory lien on the property, now owned by A. AG, to secure the 2018 tax debt of the former owner, B. AG. The cantonal authorities upheld the validity of this lien. A. AG appealed to the Federal Supreme Court.
Legal Analysis
Cantonal law (art. 191 StG/SH) may provide for a statutory lien to secure tax claims that have a specific connection to a property, such as capital gains tax from a real estate sale. This type of lien arises by operation of law, without initial registration in the land register, as soon as the tax claim is created. However,art. 836 para. 2 of the Swiss Civil Code (CC) protects third-party purchasers acting in good faith. An unregistered statutory lien cannot be enforced against them if it is not entered in the land register within two years of the claim arising. This time limit is considered a preclusive period. The purchaser's good faith is presumed (art. 3 CC). A purchaser is not in good faith if they knew or should have known of the existence of the unregistered lien by exercising the attention required by the circumstances. Case law generally considers that the initial purchaser is not protected by good faith, as they are directly involved in the transaction that generated the tax.
Application to the case
The Federal Supreme Court examined whether the lien could be enforced against A. AG. The tax claim arose in 2018 during the sale by B. AG. The lien was not registered until December 2022, well after the two-year preclusive period under art. 836 para. 2 CC had expired. Consequently, the lien is only enforceable against A. AG if the latter was not in good faith at the time of the acquisition in February 2021. The Federal Supreme Court noted that A. AG is a subsequent purchaser (the second buyer) and not the initial purchaser. The presumption of good faith therefore applies in full. The arguments put forward by the cantonal authorities to refute this good faith were rejected. The general clause in the 2021 deed of sale, in which the notary informs the parties of the potential existence of statutory liens, was deemed too abstract to negate good faith regarding a specific, long-standing tax debt of a previous owner with whom A. AG had no contractual relationship. Furthermore, the fact that more than two years had passed since the 2018 tax claim arose reinforced A. AG's confidence that no unregistered lien could be enforced against it. Finally, the waiver of a request for security only concerned potential taxes owed by its own seller (C. AG), not those of a previous owner. As there was no evidence to overturn the presumption of A. AG's good faith, it is protected by art. 836 para. 2 CC.
Outcome
The Federal Supreme Court allowed the appeal. It set aside the decision of the lower court and ruled that the statutory tax lien registered on A. AG's property for B. AG's tax debt is unenforceable against it. The case was remanded to the cantonal authority for a new decision regarding the costs and legal fees of the cantonal proceedings.
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