Federal Supreme Court, 26.02.2026, 9C_578/2025, 9C_579/2025
Facts
Following her dismissal by the company C.________ AG at the end of 2020, B.A.________ (the appellant) decided to take early retirement as of 1 June 2021. As part of a social plan, her former employer granted her a hardship support benefit of CHF 93,600, intended to be paid into her pension fund (2nd pillar).
At the end of April 2021, this amount was actually paid into the pension fund of C.________ AG as a buy-in. The fund confirmed that this amount would be "converted into a pension" (verrentet), that is, included in her future lifelong old-age pension. However, on 25 June 2021, less than two months after this buy-in, the appellant withdrew from the same pension fund two capital benefits totalling CHF 469,270. Moreover, the appellant had already taken up a new full-time professional activity as of 1 February 2021.
In their 2021 tax return, the appellant and her husband claimed the deduction of the buy-in of CHF 93,600 from their taxable income. The tax administration of the Canton of Basel-Landschaft refused this deduction, on the ground that the capital withdrawal had occurred during the three-year blocking period provided for by law. The successive cantonal instances, up to the Cantonal Court of Basel-Landschaft, confirmed this decision, which led the spouses to appeal to the Federal Supreme Court.
Law
The Federal Supreme Court recalls the general principle that contributions and voluntary buy-ins made within the framework of occupational pension provision are in principle deductible from taxable income (art. 33 para. 1 lit. d LIFD and art. 9 para. 2 lit. d LHID).
It then sets out the fundamental restriction laid down by art. 79b para. 3 LPP: benefits resulting from a buy-in may not be withdrawn in the form of capital within the three years following that buy-in. This rule, known as the "blocking period" or "waiting period", is intended to prevent tax abuse. The aim is to prevent taxpayers from making buy-ins for the sole purpose of benefiting from a tax deduction, only to withdraw the funds shortly afterwards while taking advantage of privileged taxation on capital benefits.
The Federal Supreme Court emphasises that the application of this blocking period is objective. It is not necessary to prove an intention of tax evasion. The mere chronology of the facts (buy-in followed by a capital withdrawal within three years) is sufficient to entail the refusal of the tax deduction. Moreover, this rule applies globally to all of a person's pension assets. There is no reason to distinguish between different "compartments" or "pots" within the same pension fund, or even between different pension institutions. A capital withdrawal from fund A after a buy-in with fund B would also breach the blocking period.
Finally, the Court recalls the strict conditions for invoking the protection of good faith (art. 9 Cst.). For erroneous information from the administration to bind it, it is necessary in particular that the authority gave concrete and unreserved assurances, and that the taxpayer, relying on those assurances, took irreversible steps that prove prejudicial.
Application to the present case
The Federal Supreme Court finds that the facts are clear: the appellant made a buy-in of CHF 93,600 at the end of April 2021 and carried out a substantial capital withdrawal from the same pension fund in June 2021. The three-year period of art. 79b para. 3 LPP was therefore manifestly breached.
The Court rejects all of the appellants' arguments:
- Distinction between "pension pot" and "capital pot": The argument that the buy-in was intended to increase the future pension, while the capital came from another part of the assets, is held to be irrelevant. The Court reaffirms that the blocking period rule applies objectively and globally to all 2nd-pillar assets, without any direct causal link between the buy-in and the withdrawal being necessary.
- Comparison with bridging pensions (ATF 148 II 189): The appellants relied on case law where the deduction of a buy-in financing an AVS bridging pension had been allowed despite a capital withdrawal. The Court dismisses this argument, specifying that, in that precedent, the buy-in exclusively financed a benefit that could only be paid in the form of a pension (taxed at the ordinary rate), thereby excluding any risk of the tax abuse targeted by art. 79b LPP. In the present case, the buy-in increased the overall pension assets, which could themselves be withdrawn as capital, so that the risk of abuse remained.
- Exemption for change of employment (art. 24 lit. c LIFD): This provision, which allows a tax exemption for severance payments reinvested in pension provision, is not applicable. It presupposes a transfer to the pension institution of the new employer. However, the appellant paid the funds to the fund of her former employer.
- Protection of good faith: The appellants claimed to have relied on an email from the tax administration. The Court rejects this argument for two reasons. First, the information provided was not an unconditional assurance, since the same email explicitly mentioned the existence of the three-year blocking period. Second, the appellants did not prove that they had taken a prejudicial and irreversible step on the basis of that information. Their assertion that the appellant would not have accepted her new job had she known that the deduction would be refused is held to be implausible and unsubstantiated.
Since the reasoning is identical for the cantonal and communal tax (whose legislation is harmonised on this point), the Federal Supreme Court applies the same analysis.
Outcome
The Federal Supreme Court dismisses the appeals both in respect of direct federal tax and in respect of cantonal and communal taxes. It confirms the decision of the Cantonal Court to refuse the tax deduction of the buy-in of CHF 93,600 for the 2021 tax period. The court costs are borne by the appellants.
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