Swiss Federal Supreme Court, 08.06.2026, 9C_694/2025
Facts
In 2023, A.________ AG transferred ownership of real estate to D.________ AG. The Bernese cantonal tax administration sent the real estate capital gains tax return to A.________ AG's registered office. Subsequently, E.________ AG filed a power of attorney to represent A.________ AG in this matter. (A.a, A.b)
Having not received the tax return, the tax administration issued a formal notice to A.________ AG, followed by an ex officio tax assessment decision on September 26, 2024, which was served at the company's registered office. E.________ AG stated that it had received only the tax invoice, not the assessment decision. The administration confirmed that the decision had been sent to the registered office. (A.c)
An objection was filed late on behalf of A.________ AG. The tax administration declared the objection inadmissible due to the statute of limitations, a decision upheld by the Tax Appeals Commission. A.________ AG then appealed to the Administrative Court of the Canton of Bern. The appeal document contained only a copy of the required signatures. (A.d, B)
The Administrative Court requested that A.________ AG rectify this formal defect by submitting the signed original, warning that failure to do so would result in the appeal being considered withdrawn. This request for rectification was sent to A.________ AG's registered office, rather than to the service address indicated in the appeal brief. As the company did not respond within the allotted time, the Administrative Court removed the case from the docket via a dismissal decision on November 4, 2025, deeming the appeal withdrawn. A.________ AG is challenging this dismissal decision before the Federal Supreme Court. (B, C)
Legal Analysis
The Federal Supreme Court reiterates the right to fair and equitable treatment and the right to be heard as guaranteed byArt. 29 para. 1 and 2 of the Federal Constitution. A formal denial of justice may consist of a decision of inadmissibility rendered in violation of procedural rules. The Federal Supreme Court reviews the existence of a denial of justice freely, but reviews the application of cantonal law only under the standard of arbitrariness. (consid. 4.1)
Under Bernese procedural law (VRPG/BE), which refers to the Code of Civil Procedure (CCP), parties must provide an address to the court. If a party expressly indicates a service address distinct from its registered office or domicile, notifications must be made there (Art. 136 CCP). The person authorized to receive correspondence at that service address does not need to be mandated to conduct the proceedings. (consid. 4.2)
A decision only acquires legal existence upon its notification. However, the principle of good faith (Art. 5 para. 3 of the Federal Constitution) imposes limits on invoking a notification defect. If a party becomes aware of the existence of a decision, even if irregularly notified, it must act without delay to ascertain its content and reasoning in order to preserve its rights. Invoking a notification defect belatedly to compensate for one's own inaction may constitute an abuse of rights. (consid. 5.1)
Application to the case at hand
The dispute concerns whether the Administrative Court violated federal law by dismissing the proceedings on the grounds that the appeal was deemed withdrawn. The appellant argues that the request for rectification was served at the wrong address, violating its right to be heard and constituting excessive formalism. (consid. 2 and 3)
The Federal Supreme Court found that the Administrative Court made a notification error. It sent its request for correction to the appellant's registered office, even though the appellant had explicitly designated E.________ AG as the address for service in its appeal brief. The lower authority should have respected this choice, regardless of whether E.________ AG held a power of attorney in the cantonal proceedings. The notification was therefore, in principle, irregular. (consid. 4.3)
However, the Federal Supreme Court analyzed the situation in light of the principle of good faith. The appellant admitted to having "physically" received the registered mail at its registered office. Once it became aware of the request for correction, it was incumbent upon the appellant, as a matter of due diligence, to take the necessary internal measures to process the correspondence and respond within the deadlines. The fact that its administrative organization at its registered office is "minimal" is an internal organizational issue that cannot be used to its advantage. (consid. 5.2)
The Federal Supreme Court noted decisively that the appellant managed to file its appeal with the Federal Supreme Court on time, even though the challenged dismissal decision had also been sent to its registered office. This demonstrates that it was capable of processing mail received at that address. By invoking the notification defect to justify its failure to meet the correction deadline, the appellant is acting in a contradictory manner that violates the principle of good faith. (consid. 5.2)
Finally, the Federal Supreme Court declared the appellant's grievances regarding the merits of the real estate capital gains tax assessment inadmissible, as the subject of the dispute before the previous instance and the Federal Supreme Court was solely the procedural question of the admissibility of the objection and the subsequent dismissal of the appeal proceedings. (consid. 6)
Outcome
The Federal Supreme Court dismissed the appeal to the extent that it was admissible. The court costs, set at CHF 1,000, are to be borne by the appellant, A.________ AG. No party compensation is awarded. (1, 2, 7)
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