Federal Supreme Court, 16.09.2025, 9C_397/2024
Facts
A taxpayer who owns a house in France declared a rental value of CHF 2,692 for the property for the 2020 tax year. The Bernese cantonal tax authority adjusted this value to CHF 11,680 for both direct federal tax and cantonal and municipal taxes. This adjustment was upheld by the Tax Appeals Commission and subsequently by the Administrative Court of the Canton of Bern. The taxpayer appealed to the Federal Supreme Court, requesting that the French "cadastral rental value" be used to determine the taxable rental value in Switzerland.
Legal Analysis
Under Article 21(1)(b) of the Federal Act on Direct Federal Tax (DIFD), the rental value of properties used by the taxpayer for their own use is taxable. This taxation aims to ensure equal treatment between homeowners and tenants, in accordance with the principle of taxation according to economic capacity (Article 127(2) of the Constitution). In principle, the rental value must correspond to the market rent.
Federal law does not prescribe a specific calculation method. For properties located abroad, a flat-rate calculation method is permitted, particularly when the value determined according to the rules of the country where the property is located does not meet the requirements of Swiss law. Under their duty to cooperate, it is the taxpayer's responsibility to prove that the foreign rental value they are invoking was established according to principles equivalent to those applicable in Switzerland. The same principles apply to cantonal and municipal taxes (Article 7(1) of the Tax Harmonization Act). Furthermore, Bernese law stipulates that for properties not used as a primary residence, the rental value determined for direct federal tax is decisive (Article 25(4) StG/BE).
Application to the Case
The Federal Supreme Court reviewed the calculation method used by the Bernese tax authority, which set the rental value at 6% of the purchase price (CHF 278,000) after a 30% flat-rate deduction, resulting in an amount of CHF 11,680. This is a flat-rate method accepted by case law.
The appellant argues that the French "cadastral rental value" (EUR 2,480) should be used. The Federal Supreme Court reiterates that it is up to the taxpayer to demonstrate that this foreign value complies with Swiss principles. However, the appellant failed to provide this proof. On the contrary, the significant disparity between the French value (less than 1% of the purchase price) and the value calculated by the Swiss tax authority casts significant doubt on the equivalence of the calculation methods and the objectives pursued.
The appellant's other arguments were also dismissed. He failed to prove that the purchase price of the property, which he described as a "collector's item," was higher than its market value. Furthermore, citing a supposedly different practice by the Geneva tax authorities is irrelevant, as a claim of equal treatment in illegality can only be made against the same authority.
The Federal Supreme Court concluded that the lower court did not violate federal law by upholding the tax authority's flat-rate calculation method for both direct federal tax and cantonal and municipal taxes.
Outcome
The Federal Supreme Court dismissed the appeal to the extent that it was admissible and ordered the appellant to pay the legal costs.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
