TF, 17.12.2025, 9C_521/2025
Facts
A Swiss company, A. SA (now B. SA), officially acted as an "Investment Advisor" for a foreign investment fund, the C. fund. The actual "Investment Management" of this fund was contractually entrusted to successive offshore companies (D. Ltd and E. Ltd).
The Geneva Cantonal Tax Administration (AFC) initiated tax reassessment and tax evasion proceedings for the 2010 to 2013 periods. It suspected that the Swiss company was actually managing the fund and that the use of offshore entities was a tax avoidance scheme designed to shield management and performance fees from taxation in Switzerland.
The AFC based its decision on several elements, including documents from another taxpayer's file covered by tax secrecy. It only provided the company with summaries of the content of these documents. The taxpayer contested the tax reassessment and fines, citing, among other things, a violation of its right to be heard and an arbitrary assessment of the facts. The cantonal authorities largely upheld the AFC's decision, prompting the company to appeal to the Federal Supreme Court.
Law
The Federal Supreme Court reiterates the principles governing the right to be heard in tax proceedings (Art. 29 para. 2 of the Constitution), in particular the right to consult the file (art. 114 LIFD ; art. 41 LHID). This right may be restricted if overriding public or private interests, such as the tax secrecy of a third party, so require. However, if the authority intends to use a document that cannot be consulted against the taxpayer, it must communicate its essential content so that the taxpayer can effectively state their position (Art. 114 para. 3 LIFD).
Regarding the establishment of facts, the Federal Supreme Court reviews the lower court's assessment of evidence only with restraint. It intervenes only if the facts were established in a manifestly inaccurate, i.e., arbitrary, manner (art. 97 al. 1 LTF).
Finally, in tax matters, it is the taxpayer's burden to prove facts that reduce or eliminate their tax liability, such as the existence of deductible expenses (art. 8 CC).
Application to the specific case
The Federal Supreme Court rejects the appellant's grievances.
- Regarding the right to be heard: The Federal Supreme Court finds that the company's right to be heard was respected. It notes that the tax adjustments were not based solely on confidential documents, but on a body of evidence (fund prospectuses, contracts, etc.). Furthermore, the summaries provided by the FTA were sufficiently detailed and intelligible to allow the company to understand the allegations and defend itself effectively, which it did during the cantonal proceedings.
- Regarding the assessment of facts and tax evasion: The Federal Supreme Court rules that the cantonal court did not act arbitrarily in concluding that a tax evasion scheme existed. The evidence provided by the appellant to demonstrate the actual economic substance of the offshore companies (general emails, a short-term employment contract, a foreign tax assessment) was deemed insufficient to overturn the conclusion that these entities only performed administrative support activities and that actual management was conducted from Switzerland.
- Regarding the amount of the adjustments: The challenge to the calculation of performance fees is dismissed. The private expert report produced by the appellant criticized the FTA's method but concluded that a more precise calculation was impossible due to a lack of data. Under these circumstances, the Federal Supreme Court considers that it was not arbitrary to rely on the tax authority's estimate. Likewise, the request to deduct expenses allegedly incurred by the offshore companies is rejected, as the appellant failed to provide proof of their business justification, in accordance with its burden of proof.
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The tax assessments and fines for the 2010 to 2013 tax periods are upheld. The legal costs are charged to the appellant.
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