Federal Supreme Court, 25.09.2025, 9C_5/2025
Facts
A citizen born in 1984, naturalized in 2015, was not subject to military service or the exemption tax due to his age under the former law. Following the legal amendment of January 1, 2019, which raised the age limit for the tax to 37, he became liable and was assessed a tax of CHF 3,768 for the year 2019. His appeals to the Zurich cantonal authorities were rejected. He has appealed to the Federal Supreme Court.
Legal Analysis
Under Art. 59 of the Constitution, every Swiss citizen is required to perform military service or pay an exemption tax. The Federal Act on the Military Exemption Tax (FMT) implements this principle. In its version effective since 2019, Art. 3 para. 1 FMT sets the duration of liability from the year in which the individual turns 19 until the end of the year in which they turn 37. Art. 3 para. 2 FMT specifies that for non-enlisted conscripts, liability begins the year following recruitment and lasts for eleven years. According to Federal Supreme Court case law, a person can only claim age-based discrimination if they have actively taken steps to perform their military service. A request for late recruitment is possible under certain conditions (Art. 12 para. 2 OAPM).
Application to the Case
The appellant argues that his liability never began because he was never recruited, and he complains of age-based discrimination.
The Federal Supreme Court rejects these arguments. First, it clarifies that Art. 3 para. 2 FMT, which mentions recruitment, must be read in conjunction with the general rule in Art. 3 para. 1 FMT. The absence of recruitment due to age does not exclude liability for the tax. The appellant's obligation began on January 1, 2019, the date on which the new age limit made him liable. Having performed no service, he is liable for the tax for 2019.
Second, regarding discrimination, the Federal Supreme Court reiterates that the appellant should have proven that he actively sought to be recruited. However, he did not demonstrate that he had submitted a request for late recruitment to the competent military authorities, even though this possibility existed. The mere fact that a cantonal authority declared itself incompetent to process such a request does not constitute a refusal. In the absence of such steps, the claim of discrimination is dismissed.
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The decision of the lower court is upheld, and the appellant is required to pay the exemption tax for the year 2019. The legal costs are charged to the appellant.
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