Federal Supreme Court, 24.03.2026, 9C_304/2024
Facts
As part of an investor competition for the development of a site in Bern, an investment company (A.A.________ AG) and a general contractor (E.________ AG) partnered and won the project. In November 2016, the general contractor submitted the building permit application for the defined construction project.
On July 5, 2017, the municipality of Bern granted separate and permanent building rights on two plots of land to a co-ownership community consisting of three entities (the appellants: A.A.________ AG, B.A.________ AG, and the Caisse de pension C.A.). On August 23, 2017, this co-ownership community entered into a general contractor agreement with E. AG for the execution of the construction project. The building permit was issued in September 2017.
When assessing the real estate transfer tax, the Bernese Land Registry Office included not only the capitalized value of the building right annuities (CHF 23,233,695.10) in the calculation base, but also the price of the work agreed upon in the general contractor agreement (CHF 83,054,009.-). The tax was thus set at CHF 1,913,178.65. The appellants contested this assessment, arguing that only the building right should be taxed, which would correspond to a tax of CHF 418,206.50. Their appeals were successively rejected by the Land Registry Office, the Department of the Interior and Justice of the Canton of Bern, and then by the Administrative Court of the Canton of Bern. The appellants then appealed to the Federal Supreme Court.
Law
The dispute concerns the interpretation of Bernese cantonal law on real estate transfer taxes (HG/BE), which is not harmonized at the federal level. The Federal Supreme Court therefore reviews its application only from the perspective of arbitrariness.
The relevant cantonal provisions are as follows:
- Art. 5 para. 1 let. b HG/BE : The establishment of a separate and permanent right, such as a building right, is subject to real estate transfer tax.
- Art. 6a para. 1 HG/BE (previous version, applicable in this case): For contracts for the sale of a turnkey project or sales contracts linked to a construction contract in such a way that a turnkey project is acquired, the tax is calculated on the total price (land price and construction price).
- Cantonal practice regardingart. 6a para. 1 aHG/BE : According to established Bernese case law, the acquisition of a future asset occurs when the sales contract and the construction contract are so closely linked that one would not have been concluded without the other. It is sufficient that, from an economic perspective, the transaction is equivalent to the purchase of a built property. The decisive criterion is whether the purchaser was still truly free to decide how and when to build at the time the purchase contract was concluded. The Federal Supreme Court has already ruled this practice to be non-arbitrary (judgment 2P.114/2006).
- Art. 6a para. 2 HG/BE (new version, in effect since May 1, 2022): This new provision clarifies that a link exists if there is a contractual commitment between the seller (or a related party) and the buyer regarding a construction contract.
The Federal Supreme Court also examines the principles of intertemporal law. In the absence of contrary transitional provisions, the applicable law is that in force at the time the legally relevant facts occurred. Retroactive application of a new law (true retroactivity) is only permissible under very strict conditions, which are not met in this case.
Application to the specific case
The Federal Supreme Court analyzes and rejects the appellants' three main arguments:
- Applicable law: The appellants argued that the new, more restrictive Art. 6a para. 2 HG/BE should apply because it was merely a "clarification" of the law intended to correct a practice deemed too broad. The Federal Supreme Court rejects this argument. The facts (conclusion of contracts, granting of building rights) took place in 2017, well before the new provision entered into force in 2022. In accordance with the principles of intertemporal law andArt. 30 HG/BE, the former law and the related practice apply. The Bernese legislature did not provide for retroactivity, and there is no compelling public interest justifying a departure from this principle.
- Applicability of Art. 6a aHG/BE to building rights: The appellants claimed that Art. 6a aHG/BE only applied to sales contracts and not to the establishment of building rights. The Federal Supreme Court confirms the position of the lower court. Art. 5 HG/BE explicitly subjects the establishment of a building right to the tax. It is therefore not arbitrary to apply the calculation rule of Art. 6a aHG/BE by analogy to this transaction, which produces economic effects similar to a transfer of ownership.
- Link between contracts: The appellants contested the existence of a dependency between the granting of the building rights and the construction contract, claiming they had retained their freedom of decision. The Federal Supreme Court finds that the lower court's assessment is not arbitrary. It notes a decisive factual element: the building permit application was filed in November 2016, more than seven months before the appellants obtained the building rights in July 2017. At the time these rights were acquired, the construction project was already defined and its implementation underway. Under these circumstances, from an economic perspective, the appellants were no longer free to decide if, when, and how they would build. The building rights and construction contracts were therefore so closely linked, both factually and legally, that the transaction as a whole was equivalent to the acquisition of a future turnkey project.
Outcome
The Federal Supreme Court dismisses the appeal. It confirms that the cantonal authorities did not violate federal law, and in particular did not apply cantonal law arbitrarily, by including the price of the work from the general construction contract in the transfer tax base. The tax assessment of CHF 1,913,178.65 is upheld. The court costs, amounting to CHF 15,000, are to be borne by the appellants, jointly and severally.
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