Federal Supreme Court, 25.09.2025, 9C_687/2024
Facts
On December 20, 2019, an LLC decided to distribute a dividend of CHF 200,000 to its sole shareholder. The company declared to the Federal Tax Administration (FTA) that the due date for this payment was December 20, 2019. On January 10, 2023, the taxpayers (the shareholder and his spouse) filed their 2019 tax return and requested a refund of the CHF 70,000 withholding tax levied on this dividend. The cantonal tax authority denied the refund on the grounds that the right to claim it had expired on December 31, 2022. The taxpayers' cantonal appeals were rejected. They have now appealed to the Federal Supreme Court, requesting an extension of the deadline and payment of the claimed amount.
Legal Analysis
The withholding tax liability on capital gains arises at the moment the taxable benefit becomes due (Art. 12 para. 1 WTHA). If the general meeting of shareholders does not set a due date for a dividend, it is deemed due on the day the distribution is decided (Art. 21 para. 3 WTHO). The actual date of payment is irrelevant for determining when the liability arises.
The right to a withholding tax refund expires if the application is not submitted within three years following the end of the calendar year in which the benefit became due (Art. 32 para. 1 WTHA). This is a statute of limitations that may be subject to reinstatement. Reinstatement of a deadline is granted if the applicant was prevented from acting within the prescribed period through no fault of their own (Art. 24 para. 1 APA). A non-culpable impediment requires an objective and insurmountable obstacle, such as illness, an accident, or force majeure. A strict standard of assessment is applied.
Application to the Case
The Federal Supreme Court first determined the due date of the dividend. Although the appellants claimed the due date was in 2020, they provided no evidence (no minutes of the general meeting). In the absence of a specific due date, the dividend became due on the day of the decision, i.e., December 20, 2019.
Consequently, the three-year limitation period for requesting a refund began on January 1, 2020, and ended on December 31, 2022. The application filed on January 10, 2023, was therefore late.
The Federal Supreme Court then examined the request for reinstatement of the deadline. The appellants cited the withholding of documents by their former fiduciary as the reason for the impediment. The Court rejected this argument, finding it not to be a valid ground for reinstatement. The sole shareholder was aware of the dividend distribution, having personally signed the declaration form for the FTA. Furthermore, the fact that they were able to file their application on January 10, 2023, apparently still without the documents in question, contradicts the idea of an insurmountable obstacle existing until the end of the deadline. No objective and non-culpable obstacle was therefore demonstrated.
Outcome
The Federal Supreme Court dismissed the appeal to the extent that it was admissible. The court costs are to be borne by the appellants.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
