Federal Supreme Court, 29.01.2026, 9C_655/2025, 9C_656/2025
Facts
A public limited company (the appellant), based in the canton of Nidwalden and active in the real estate sector, is in a dispute with the Tax Administration of the canton of Solothurn (the respondent) regarding several tax periods.
For the 2015 period, the respondent added an amount of CHF 200,000 to the company's taxable profit, classifying it as a gain from the sale of a property located in the canton of Solothurn. The company contested this adjustment, asserting that this amount constituted equity recorded in 2014.
For the 2017 and 2018 periods, as the company had not filed tax returns, the respondent proceeded with an ex officio assessment based on an estimate. The objection filed by the company against this assessment was declared inadmissible by the respondent.
The Tax Court of the canton of Solothurn rejected the company's appeals for both disputes. The company then appealed to the Federal Supreme Court.
Legal Analysis
- Limited tax liability : A legal entity that has neither its registered office nor its effective management in the canton of Solothurn is subject to limited tax liability there if it owns real estate, holds rights to such property, or trades in it. The tax is then levied on the profit and capital related to this activity (§ 85 para. 2 let. c and § 86 para. 2 StG/SO).
- Ex officio assessment : If a taxpayer fails to fulfill their procedural obligations despite a formal notice (e.g., failing to file a tax return), the tax authority proceeds with an ex officio assessment based on its own discretion (§ 147 para. 2 StG/SO ; art. 46 LHID).
- Contesting an ex officio assessment : An ex officio assessment can only be challenged on the grounds of manifest inaccuracy. The objection must be substantiated and evidence must be provided. If these requirements are not met, the objection is inadmissible (§ 249 para. 4 StG/SO ; art. 48 para. 2 LHID). To have the case heard, the taxpayer must fully resolve any uncertainty regarding the facts by providing all documents necessary for a correct assessment.
- Proceedings before the Federal Supreme Court : New facts and evidence are only admissible if the decision of the lower court provides grounds for them (art. 99 para. 1 LTF). Allegations of violations of fundamental rights must be supported by specific arguments (art. 106 para. 2 LTF).
Application to the specific case
The Federal Supreme Court (FSC) has joined the two cases due to their connection.
It immediately declares the new documents (2017-2018 annual accounts and tax returns) submitted by the appellant inadmissible, as they were created after the cantonal judgment and could have been produced much earlier.
Regarding the 2015 period, the FSC finds that the appellant failed to demonstrate how the lower court's findings of fact were manifestly inaccurate. The adjustment of CHF 200,000 is based on a sales contract and a communication from the land registry office. The appellant's mere assertion that these were equity funds is insufficient. The FSC also dismisses the claims of a violation of the right to be heard, as the appellant had several opportunities to state her position.
Regarding the 2017 and 2018 periods, the FSC confirms that the conditions for an ex officio assessment were met, as the appellant had failed to file her tax returns. To challenge this assessment, she would have needed to demonstrate its manifest inaccuracy by providing complete accounting records and the corresponding tax returns. The submission of unsigned income statements and a few account extracts during the objection procedure was insufficient to allow for a correct assessment. Consequently, the tax authority was justified in refusing to consider the objection, and the cantonal court correctly upheld this decision.
Outcome
The Federal Supreme Court dismisses the appeals to the extent that they are admissible and orders the appellant company to pay the legal costs, amounting to CHF 10,500.
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