Inadmissibility of an appeal against a referral decision in tax matters

Swiss Federal Supreme Court, 20.04.2026, 9C_77/2025

Facts

The dispute concerns the taxation of spouses A.________ and B.________ for the 2012 and 2013 tax periods, in connection with the sale of a significant block of shares in the company D.________ AG.

In August 2020, the taxpayers signed an agreement with the tax authority of the Canton of Ticino, establishing the terms for taxing the gain realized on this sale for the year 2012. Based on this agreement, the Ticino tax office issued tax assessments for 2012 and 2013 in December 2020. The Federal Tax Administration (FTA), acting as the supervisory authority, did not approve this agreement. It took the view that the capital gain should have been treated differently and appealed both tax assessments to the Tax Law Chamber of the Ticino Appeals Court.

In a judgment dated December 18, 2024, the Ticino cantonal court ruled separately on the two years:

• For 2013: It dismissed the FTA's appeal and confirmed the initial assessment. The decision is therefore final for this period.
• For 2012: It upheld the FTA's appeal, annulled the initial assessment, and remanded the case to the tax office to issue a new assessment including the full capital gain from the sale of the shares, after deducting any applicable expenses. The decision is therefore a remand (interlocutory) decision for this period.

The taxpayers, dissatisfied with this decision, appealed to the Federal Supreme Court, requesting that the initial December 2020 assessments be confirmed for both years.

Legal Analysis

1. Standing and interest in appealing (Art. 89 LTF)

To be eligible to appeal to the Federal Supreme Court, a party must have a practical and current interest in the annulment or modification of the contested decision. There is no interest in appealing if the party is requesting the confirmation of what they have already obtained.

2. Appeal against a remand decision (interlocutory decision) (Art. 93 LTF)

• A remand decision, which does not conclude the proceedings, is an interlocutory decision.
• An immediate appeal against such a decision is only possible in exceptional and strictly defined cases:
  1. If the decision could cause irreparable harm (generally of a legal nature; a simple delay in proceedings is not sufficient).
  2. If admitting the appeal could immediately lead to a final decision and avoid lengthy and costly evidentiary proceedings.
• The appellant must demonstrate in detail that one of these conditions is met.

Application to the specific case

The Federal Supreme Court examined the admissibility of the appeal separately for each tax period and concluded that it was entirely inadmissible.

1. Regarding the 2013 tax period

• The cantonal court rejected the FTA's appeal and therefore ruled entirely in favor of the taxpayers for this year.
• By asking the Federal Supreme Court to confirm the 2013 tax assessment, the taxpayers are requesting exactly what the cantonal court has already granted them.

They therefore have no practical or current interest in appealing for this period.

• The appeal is inadmissible on this point.

2. Regarding the 2012 tax period

• The cantonal court's decision is a remittal (interlocutory) decision, as it instructs the lower authority to carry out a new assessment while taking into account new instructions (deduction of expenses).
• The taxpayers have not demonstrated how this remittal decision meets the conditions of Art. 93 of the Federal Supreme Court Act (LTF):
  • There is no irreparable harm, as the mere fact of having to participate in a new tax assessment procedure does not constitute one.
  • The new assessment, which consists of recalculating the gain and deducting expenses, does not involve particularly lengthy or costly evidentiary proceedings.
  • The conditions for an immediate appeal against an interlocutory decision are therefore not met.
• The appeal is also inadmissible on this point.

Outcome

The Federal Supreme Court declares the appeal entirely inadmissible.

Legal costs of CHF 5,000 are charged to the appellant taxpayers.

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