Federal Supreme Court, 17.02.2026, 9C_699/2025
Facts
In 2009, taxpayers residing in the canton of Aargau temporarily moved their domicile to the canton of Grisons. During this period, the husband received a cash payout of his vested benefits amounting to approximately CHF 3.45 million, on the grounds that he planned to start a self-employed activity—a condition that was never met. After their return to Aargau a few months later, a lengthy dispute arose regarding tax jurisdiction.
The Federal Supreme Court ultimately ruled that tax sovereignty belonged exclusively to the canton of Aargau and that, in the absence of a valid reason for the cash payout, the capital had to be taxed as ordinary income rather than at a preferential rate. After the ordinary assessment for the 2009 direct federal tax became final, the taxpayers, who had a net wealth of approximately CHF 1.7 million, filed a request for tax remission in the amount of CHF 362,640.40. This request was rejected by the Aargau authorities, a decision confirmed by the special cantonal administrative court. The taxpayers are appealing this refusal before the Federal Supreme Court.
Legal Analysis
The Federal Supreme Court reiterates the admissibility requirements for a public law appeal against a tax remission decision. According toArt. 83 lit. m of the Federal Supreme Court Act (FSCA), such an appeal is inadmissible unless it concerns direct federal tax (or cantonal income and wealth taxes) and raises a legal question of principle or involves a particularly important case.
A legal question of principle must be a novel issue whose clarification is necessary to ensure the uniform application of the law. It must strictly pertain to the law of tax remission and not to the tax assessment itself. The remission procedure cannot, under any circumstances, be used to challenge the merits of a final tax assessment.
Tax remission, governed byArt. 167 para. 1 of the Direct Federal Tax Act (DFTA), is subject to two cumulative conditions: the taxpayer must be in a state of financial distress, and the payment of the tax must constitute a severe hardship. Established case law clarifies that there is no legal right to tax remission.
In the event that an ordinary appeal is inadmissible, a subsidiary constitutional appeal is only available for the violation of constitutional rights (Art. 116 FSCA). Its admissibility requires a legally protected interest (Art. 115 lit. b FSCA). In the absence of a right to remission, the taxpayer does not possess a legally protected material interest in the annulment of the refusal decision.
Application to the present case
The Federal Supreme Court first examines the admissibility of the public law appeal. It notes that the taxpayers' arguments are actually aimed at challenging the method of taxation (ordinary rather than preferential taxation), which is inadmissible in a remission procedure, as the tax assessment is final.
The taxpayers do not raise any legal question of principle regarding the right to remission. The condition of "financial hardship" is clearly not met given their assets. Since one of the two cumulative conditions of Art. 167 DBG is missing, the request for remission had to be rejected in any case. The argument that the tax reduces their pension capital does not constitute "severe hardship" within the meaning of the law, but is the normal consequence of taxing income. Nor is the case "particularly important." The initial conflict of jurisdiction with the Canton of Grisons has already been settled by the Federal Supreme Court, which ordered Grisons to revise its tax assessment and refund the taxes collected.
As the conditions of Art. 83 lit. m BTA are not met, the public law appeal is inadmissible.
Regarding the subsidiary constitutional appeal, the Federal Supreme Court notes that, in the absence of a right to tax remission, the taxpayers do not have the legally protected material interest required by Art. 115 lit. b BTA. Furthermore, they do not invoke any violation of their procedural rights that could establish a legally protected procedural interest. The subsidiary constitutional appeal is therefore also inadmissible.
Outcome
The Federal Supreme Court declares both the public law appeal and the subsidiary constitutional appeal inadmissible. The court costs are to be borne by the appellants.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
