Swiss Federal Supreme Court, 01.10.2025, 9C_286/2024
Facts
A taxpayer, separated from his spouse since January 1, 2021, is required to pay a monthly maintenance contribution for her and their two children, who reside in Spain with their mother. For the 2021 tax year, he deducted 84,324 CHF from his income for this purpose. The payments were made to a bank account in Spain held jointly by the two ex-spouses. The taxpayer justified this arrangement by stating that his ex-wife was unable to open an account in that country on her own. The Geneva tax authorities denied the deduction, a position upheld by the cantonal judicial authorities. The taxpayer appealed to the Federal Supreme Court.
Legal Analysis
Under Art. 33 para. 1 let. c of the Federal Act on Direct Federal Tax (DBG) (and corresponding harmonized cantonal provisions), maintenance contributions paid to a spouse are deductible from the debtor's income. This deductibility is based on the principle of symmetry, whereby a payment that is deductible for the debtor must be taxable as income for the recipient (Art. 23 let. f DBG). The Federal Supreme Court reaffirms its case law (notably judgment 2C_380/2020), which excludes the deduction when payments are made to an account over which the debtor retains free power of disposal. To be deductible, funds must leave the debtor's sphere of influence, which is not the case for payments made to a joint account. Tax law allows for a certain degree of formalism for practical reasons, making the formal criterion of power of disposal decisive, regardless of the reasons that led to the opening of such an account.
Application to the Case
In this case, the taxpayer was a joint holder of the account to which he paid the maintenance contributions. He therefore retained free power of disposal over these funds. Consequently, the amounts paid did not leave his personal assets, and the condition for the deduction was not met. The Federal Supreme Court rejects the appellant's arguments. It confirms that its case law applies, regardless of the practical reasons that led to the opening of the joint account. The decisive criterion is the existence of the debtor's power of disposal over the funds paid. The fact that the taxpayer was granted deductions for family expenses (Art. 35 para. 1 let. a DBG) is irrelevant, as this is a separate issue from the deductibility of maintenance contributions.
Outcome
The Federal Supreme Court dismisses the appeal. It confirms that the taxpayer cannot deduct maintenance contributions paid into a joint account, as he retained free disposal of those funds. The court costs are charged to the appellant.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
