TF, 27.02.2026, 9C_620/2025
Facts
In December 2019, A.________ (the taxpayer) and her husband sold a condominium unit they held in joint ownership for CHF 740,000. The husband simultaneously sold another condominium unit, held in sole ownership, for CHF 770,000.
The tax administration of the Canton of Bern taxed the share of the real estate gain attributable to the taxpayer, i.e. CHF 85,418, and refused to grant the tax deferral requested for reinvestment in a replacement property. After objection proceedings, the Tax Appeals Commission upheld the taxpayer's appeal and granted a full tax deferral.
On referral by the tax administration, the Administrative Court of the Canton of Bern partially upheld the appeal. It held that a tax deferral could only be partial, considering that a gain of CHF 21,712 was to be deferred and that the balance of CHF 63,706 was immediately taxable. It referred the case back to the tax administration for a new assessment on this basis.
The tax administration then filed an appeal in matters of public law with the Federal Supreme Court, contesting not the principle of partial deferral, but the calculation method applied by the Administrative Court.
Law
The dispute concerns the method of calculating the partial deferral of real estate gains tax in the event of partial reinvestment of the proceeds of the sale of a main residence.
In accordance with art. 12 para. 3 lit. e LHID and art. 134 para. 1 lit. a LI/BE, the taxation of the real estate gain is deferred if the proceeds of the sale of a dwelling used on a lasting and exclusive basis by the owner are reinvested within a reasonable time in the acquisition of a replacement dwelling in Switzerland.
In the event of partial reinvestment, the Federal Supreme Court has consistently held that only the "absolute method" complies with harmonised federal law, leaving the cantons no margin of manoeuvre. This method, codified in art. 135 LImp/BE, breaks down as follows:
- The immediately taxable portion of the gain corresponds to the portion of the sale proceeds that is not reinvested in the replacement property.
- The deferred portion of the gain corresponds to the portion of the sale proceeds that is actually reinvested, but only to the extent that it exceeds the initial investment costs of the former property.
These two amounts are regarded as gross gains, on which the applicable deductions (in particular for the holding period) must then be calculated.
Application to the present case
In the present case, the parties agree that the taxpayer's reinvestment is partial and that the tax deferral can therefore only be partial. The only point in dispute is the calculation method.
The Administrative Court made a calculation error. It correctly determined the deferrable gain (CHF 21,712) by subtracting the investment costs (CHF 81,641) from the reinvested amount (CHF 103,353). However, to determine the immediately taxable portion, it simply subtracted this deferrable gain from the total taxable gain after the holding-period deduction (CHF 85,418 - CHF 21,712 = CHF 63,706).
The Federal Supreme Court holds that this calculation is contrary to the absolute method. The correct method is as follows:
- Calculation of the immediately taxable gross gain: It corresponds to the portion of the sale proceeds not reinvested.
- Total sale proceeds: CHF 366,369
- Amount reinvested: - CHF 103,353
- Immediately taxable gross gain: CHF 263,016
- Calculation of the deferred gross gain: It corresponds to the excess of the reinvestment over the investment costs.
- Amount reinvested: CHF 103,353
- Investment costs: - CHF 81,641
- Deferred gross gain: CHF 21,712
The total gross gain (CHF 284,728) is thus indeed made up of the sum of these two parts (CHF 263,016 + CHF 21,712). It is on the basis of this immediately taxable gross gain of CHF 263,016 that the 70% holding-period deduction must be applied, which leads to a taxable gain of approximately CHF 78,900 (and not CHF 63,706 as calculated by the previous instance).
The Federal Supreme Court notes that the Administrative Court itself acknowledged its calculation error in its observations.
Outcome
The Federal Supreme Court upholds the appeal of the tax administration of the Canton of Bern. It sets aside the judgment of the cantonal Administrative Court.
The case is referred directly back to the tax administration of the Canton of Bern so that it may carry out a new assessment applying the correct calculation method, as set out in the recitals of the judgment.
No court costs are levied and no party costs are awarded, the matter resulting from a calculation error of the previous instance.
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