Federal Supreme Court, 16.12.2025, 9C_390/2025
Facts
A limited company (A. AG), in liquidation, had its registered office successively in the cantons of Appenzell Ausserrhoden, St. Gallen (until 2018), and then Obwalden. The tax administration of the canton of Ticino claimed unlimited tax liability for the company for the 2017 to 2022 periods, on the grounds that its effective management was located in Ticino. This assertion was based on the fact that the company's main employee and indirect shareholder, F., was domiciled there. The Ticino cantonal authorities confirmed this tax liability. The company appealed to the Federal Supreme Court, requesting the annulment of the tax liability decision, or alternatively, its limitation to the years 2018-2022.
Legal Principles
Under harmonized tax law and case law regarding the prohibition of intercantonal double taxation (Art. 127 para. 3 of the Federal Constitution), the principal tax domicile of a legal entity is, in principle, its registered office as entered in the commercial register. However, the place of effective management prevails when the registered office does not correspond to economic reality and appears to be artificial (a "letterbox" company). Effective management is located where the actual and economic center of the business is situated, where management is truly exercised, and where decisions essential to the pursuit of the corporate purpose are made. The canton claiming that effective management is located within its territory, contrary to the registered office, must prove this with a preponderance of probability. If it fails to do so, it bears the consequences of the lack of evidence.
Application to the Case
The Federal Supreme Court examines the situation for two distinct periods.
For the 2017 tax period, the Federal Supreme Court finds that the canton of Ticino did not prove, with a preponderance of probability, that the company's effective management was located within its territory. Indeed, throughout 2017, the company's key person, F., was domiciled in Great Britain. Her residence abroad makes it highly unlikely that she exercised effective management of the company from Ticino.
For the 2018 to 2022 tax periods, the situation is different. F. returned to settle in Ticino in January 2018. She was the company's sole employee, performed other full-time professional activities there, and the registered offices in the cantons of St. Gallen and Obwalden were merely domiciliation addresses. Furthermore, the company's bank accounts were in Ticino, and the legal jurisdiction stipulated in F.'s employment contract was also in Ticino. All these indicators lead to the conclusion, with a preponderance of probability, that the company's effective management was indeed located in Ticino during this period.
The appellant's request to annul the tax decisions of the cantons of St. Gallen and Obwalden is deemed inadmissible, as it was not sufficiently substantiated and did not precisely identify the decisions in question.
Outcome
The Federal Supreme Court partially allows the appeal. It amends the cantonal judgment and annuls the decision of unlimited tax liability for the company in the canton of Ticino for the 2017 tax period. Conversely, it dismisses the appeal for the 2018 to 2022 tax periods and confirms the tax liability in Ticino for those years. The appeal against the cantons of St. Gallen and Obwalden is declared inadmissible.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
