Federal Supreme Court, 28.11.2025, 9C_642/2024
Facts
A citizen was naturalized as a Swiss national in 2017 at the age of 31. Under the law in force at that time, he was no longer subject to military service due to his age. On January 1, 2019, a legislative amendment raised the age limit for liability for the military exemption tax to 37. The cantonal authority subsequently subjected the individual to the tax for the years 2018 to 2021, and these decisions became final. The individual contested the tax assessment for 2022 and requested a refund of the amounts already paid. His objection and subsequent cantonal appeal were rejected. He has now appealed to the Federal Supreme Court.
Law
According toArt. 59 of the Federal ConstitutionandArt. 1 of the Military Exemption Tax Act (LTEO), every Swiss citizen who does not perform military or civilian service must pay a tax. The former law (Art. 3 para. 2 let. a of the former LTEO) stipulated that tax liability for individuals not incorporated into the army ended at age 30. Since January 1, 2019, the new Art. 3 LTEO extends the duration of liability until the end of the year in which the individual reaches the age of 37. According to the established case law of the Federal Supreme Court, applying this new law to tax years following its entry into force does not constitute inadmissible retroactivity. The exemption tax is a periodic levy; the conditions for liability must be examined separately for each year based on the law in force for that period. To claim a violation of the prohibition of discrimination, the taxpayer must demonstrate that they took active steps to perform their military service.
Application to the case
The Federal Supreme Court does not consider the request for a refund for the years 2018 to 2021, as the corresponding decisions became final without the appellant invoking any grounds for reconsideration or nullity. The dispute concerns only the year 2022. For 2022, the new law, which entered into force in 2019, applies. The fact that the appellant was not subject to the tax at the time of his naturalization under the former law is irrelevant. In 2022, he had not yet reached the age limit of 37 and had not performed any service; he is therefore liable for the tax. The Federal Supreme Court rejects the appellant's claims:
- Retroactivity: Applying the new law to a future tax period (2022) is not retroactive.
- Good faith: No one can claim a vested right to the maintenance of a tax law.
- Discrimination: The claim is unfounded, as the appellant did not allege that he attempted to perform his military service.
- Proportionality: This argument is also dismissed, as it is linked to the discrimination claim, which was rejected.
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The appellant is subject to the military service exemption tax for the year 2022 and must bear the legal costs.
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